-
https://clinton.presidentiallibraries.us/files/original/71d8d57d36afb136c699ed399e0558cc.pdf
0f6c7d11649acd074284d1764c890337
PDF Text
Text
l
Withdrawal/Redaction Sheet
Clinton Library
DOCUMENT NO.
AND TYPE
001. memo
SUBJECTffiTLE
DATE
Joel to Jeff, re: Race-Conscious Remedies (2 pages)
1/9/1995
RESTRICTION
P5
COLLECTION:
Clinton Presidential Records
Counsel Office
Jeff Connaughton
OA/Box Number: 7442
FOLDER TITLE:
Affirmative Action [2]
2008-0308-F
wr890
RESTRICTION CODES
Presidential Records Act- 144 U.S.C. 2204(a)]
Freedom of Information Act- 15 U.S.C. 552(b)]
PI
P2
P3
P4
b(l) National security classified informationj(b)(l) of the FOIAI
b(2) Release would disclose internal personnel rules and practices of
an agency l(b)(2) of the FOIAI
b(3) Release would violate a Federal statute l(b)(3) of the FOIAI
b(4) Release would disclose trade secrets or confidential or financial
information l(b)(4) of the FOIAI
b(6) Release would constitute a clearly unwarranted invasion of
personal privacy l(b)(6) of the FOIAI
b(7) Release would disclose information compiled for law enforcement
purposes l(b)(7) of the FOIAI
b(8) Release would disclose information concerning the regulation of
financial institutions l(b)(8) of the FOIAI
b(9) Release would disclose geological or geophysical information
concerning wells l(b)(9) of the FOIAI
National Security Classified Information l(a)(l) of the PRAI
Relating to the appointment to Federal office ](a)(2) of the PRAI
Release would violate a Federal statute ](a)(3) of the PRAI
Release would disclose trade secrets or confidential commercial or
financial information l(a)(4) of the PRAI
P5 Release would disclose confidential advice between the President
and his advisors, or between such advisors ja)(5) of the PRAI
P6 Release would constitute a clearly unwarranted invasion of
personal privacy l(a)(6) of the PRAI
C. Closed in accordance with restrictions contained in donor's deed
of gift.
PRM. Personal record misfile defined in accordance with 44 U.S.C.
2201(3).
RR. Document will be reviewed upon request.
�)
J
I.
>a..
0
(.)
0
To:
F'rom:
Date:
Joel
Jeff
January 9, 1995
1-
Re:
Race-conscious- Remedies
>-
I have been att~mpting.to summarize the Justice Department's
positions in the ra6e-conscious policy cases (unfortunately, I'm
ndt finished). Though they involve various context-s~ecific
issues, some of the common'themes that emerge from these cases
involve the following questions:
·
*
a..
~
<(
~
a::i
...J
Or does the goal of promoting racial diversity, even in a
nonremedial context, represent a sufficiently compelling
governmental justification that satisfies constitutional
scrutiny?
·
·.
*
::I:
Does the Constitution.limit the use of race-conscious
remedies to contexts with a proven remedial purpose?
*
0
If congress has authorized a race-conscious program in a
.· nonremedial context, Cl.oes Congress • s status as a co-equal
branch of government warrant a court upholding its
constitutionality under Fullilove-Metro Broadcasting
intermediate level scrutiny?
·
*
or should Croson-style strict scrutiny apply to federal as
well as state race-based programs, thus effectively limiting
even congressionally authorized programs to proven remedial
contexts?
*
Relatedly, do federal agencies face constitutional
limitations when employing race-conscious polic~es mandated
by congress?
*
What evidence of the vestiges of racial discrimination
justify the continued use of remedial programs?
*
Do the evidentiary standards supported by the Justice
Department amount virtually to the imposition of racial
quotas?
·
Arguably, while the rest of the country has debated the
merits of affirmative action,· the Justice Department has taken
positions in these cases which. not only favor the use of rac;:econscious remedies, but .. would expand the circumstances in which
their use is constitutionally required (or, for voluntary
·
programs, would expand the circumstances in which their use is
constitutionally defensible).
Therefore, some additional questions include the following:
*
Where do DOJ positions arguably go beyond even a strong
qommitment to affirmative action?
..
';
�>c..
0
C,.)
Taxman
Aderand
Jenkins
Podberesky
disparate impact
voting rights cases
evidence of vestiges of racial discrimination
in instances of remedial purpose
w~ere there is congressional/agency authority
in absence of remedial purpose
*
Were the Administration to cha·nge ·its commitment to
affirmative action, where does wiggle room exist (e.g.,
executive agency policies versus federal statutory
mandates)? Where does it not exist (other than in DOJ
positions before Court) (e.g., a President cannot. alter the
federal government's commitment to school desegregation, for
example, because that issue is constitutionally driven by
the federal courts).
*
What are the competing political·visionsjtheories of
democracy in this area?
·
·
*
What are the questions whose answers lead to an overriding
principle in this ar~a?-
*
Any breakout thinking possible?
(1)
(2)
(3)
(4)
(5)
school desegregation;
minority set-asides;
voting rights;
·
employment policies;
scholarship preferences;
(6) disparate impact theories.
0
10
:::I:
c.. .
>-
0::::
.<(
0::::
al
....I
�Withdrawal/Redaction Sheet
Clinton Library
DOCUMENT NO.
AND TYPE
SUBJECTrfiTLE
DATE
RESTRICTION
1':7-5
001. memo
Attorney General to President Clinton, re: Choices Following
Adarand (5 pages)
6/23/1995
P5
002a. memo
Chris Edley to John Schmidt, re: Adarand Implications for Setaside
Sunsets (I page)
7/6/1995
P5
1-:tl.f
002b. letter
Christopher Edley to Deval Patrick, re: Miscellany (2 pages)
7/5/1995
P5
[)t? 158
~~~
COLLECTION:
Clinton Presidential Records
Counsel Office
Christopher Edley
OA/Box Number: 5747
FOLDER TITLE:
Affirmative Action- Adarand/Post-Adarand Implications [I]
2008-0308-F
wr891
RESTRICTION CODES
Presidential Records Act- 144 U.S.C. 2204(a)i
Freedom of Information Act- 15 U.S.C. 552(b)i
PI
P2
PJ
P4
b(l) National security classified information i(b)(l) of the FOIAI
b(2) Release would disclose internal personnel rules and practices of
an agency l(b)(2) of the FOIAI
b(J) Release would violate a Federal statute i(b)(J) of the FOIAI ·
b(4) Release would disclose trade secrets or confidential or financial
information i(b)(4) of the FOIAI
b(6) Release would constitute a clearly unwarranted invasion of
personal privacy l(b)(6) of the FOIAI
·
b(7) Release would disclose information compiled for law enforcement
purposes l(b)(7) of the FOIAI
b(8) Release would disclose information concerning the regulation of
financial institutions l(b)(8) of the FOIAI
b(9) Release would disclose geological or geophysical information
concerning wells i(b)(9) of the FOIAI
National Security Classified Information l(a)(l) of the PRAI
Relating to the appointment to Federal office i(a)(2) of the PRAI
Release would violate a Federal statute l(a)(J) of the PRAI
Release would disclose trade secrets or confidential commercial or
financial information l(a)(4) of the PRAI
PS Release would disclose confidential advice between the President
and his advisors, or between such advisors la)(S) of the PRAI
P6 Release would constitute a clearly unwarranted invasion of
personal privacy i(a)(6) of the PRAI
C. Closed in accordance with restrictions contained in donor's deed
of gift.
PRM. Personal record misfile defined in accordance with 44 U.S.C.
2201(3).
RR. Document will be reviewed upon request.
�>a..
0
(.)
0.
10
:I:
----~.a---
July 6, 1995
>0::::
<(
. To:
John Schmidt
From: Chris Edley
Re:
~
Adarand Implications for Setaside Sunsets
Thanks for your note.
1. I certainly agree with your correCtion re: prime contractors. Yes, ifthe program purpose
includes (as it does) remedying discrimination· by· primes, the relevant pool· could be
constructed with .reference to existing firms.
2. But I still think my underlying point is sound. Mike Small (OLC) called to chat about my
note, and reminded me that in Croson itself the court recognized that if the pool of existing
firms is artificially depressed because identifiable discrimination has limited entry and success,
then the relevant comparison should be "grossed up" to some larger number. (There has to be
some analysis to justify the larger number, of course. And all this becomes murky, tmcharted
waters.)
There would certainly still need to be attention to identifying the cause of the low pool
numbers so as to make it more than general societal discrimination. I gather from Mike Small
that this analysis is doable -- that it is part of what some disparity studies attempted.
3. But put aside the strict scrutiny issue for a moment. If we have a serious public policy goal
of expanding entrepreneurship with a range ·of programs from outreach to setasides, then you
may want to use racially targeted efforts as far as is constitutionally permissible, and then use
race-neutral measures to get you the rest of the way to victory.
·
Even in that construct, .however, it makes sense to figure out what we mean by
"victory." So we need a test for sunsets, which may or may not turn out to be identical to the
constitutional boundary for racial targeting.
·
4. In any case, I'm leaving the White House payroll tomorrow and starting the intermittent
relationship with you folks. So,. starting next week, I will agree with you far more often, and
with far fewer qualifications!
0::::
-
co.
�.----
'::'; q .1.. I'IU • UU'+
.~ENERAL COUNSEL
. • \(. ~~
.
/.
v
~,{t~ .. ~ ~., .... ~ -\-111~:~
. July 5,
./I ),.......... .....
. . .,.,... v'
~
S"
~·~·,,.,
1995
·
~ h} - \
\~-
'-
~..,~,.
l--
'Wall\: ::ro~
a.-·
Miaeolloll)' •
,..
t" .\
t.a..
\I . \ ""fOil.t"j"'\ )t7 \ o'l>- .
I
QO
.
~ lt'O.Ho "' ~ ~~~~C> (' ~
'~",..1
r . 1•.)
· lol'~ ~ ~ \J::i~
':,}(",.'
.,.,~J o-n
. t'. ·} .AAI f'IOI\\'"ll.;'(''-"' 9,1/'t \ . \(. d\
~
I"' \u
~" , )r ~ .....> """:,.,1..,... '}J,....." ,i:J
11
\" ..,.-",&0
J "'
- \
•
'(!-~\~"". ~ ~~~~· t .f'..~> Rc '-\•" i.-A ..
"6 \
~cl . ) ,.. ~~"~ '·~
-t": ,I .C:. ~~ fl fJ"" f"*~...A e...,,.. .$ '
'i:(,J~$•"'\,•1•-'t "~;"l..\IJ.fl
concc:~Y ~t c~ g.
~'!)..
.
$:"t.t\....,' d') ·.
..
(,o )tiLt"
ohn Schmid~
bristopher Edlcy, lr. ·
>-
e~-·~'- :3
~-~i~
\o1·
... \\ \a.,.t.J. . ~L ~
cc;
r . u"
0
. DeY•I & Co.: George noteS quite
the
draft of
Rep'llPiio&
=lion onlhe hislOry of afflrQ>&tive ctionlhat is ftnmed almost entirely in term• of the African·?:; ·
Americans. Can your team druf a short suboe<:tion on affmnative action as regotd.< other fl"
&
minorities? Tho point is to lillY s mcthing about <he history of cliscrlminuti<>n and
...
1
origin of judicial and· public ' licy 'allelltion to the problem. and the origin of aflirmmive
mca5Ul"'· Doesn't have 10 b a ton ohtuiT; Ju•t two pages t!)al would provide some balance.
In porticulur: Hlspanico, Aoi n l'iu:ific lalandeR. Maybe oven a paragruph on Aleuts (l' m
,c
kidding: including thcifi. i tho original Richmond o11Unano:e was stupid, bot I assume there
1,·
. a •tory to. be told QboUt b rdships theY hove !_.i in Alaska.) Our sense ·is that oome concrete\
0
examplos/anccdates or s mctbiiiB would be helpful, As you know. the President's view is thaP" .Jr
· .,bile the historY nf .t cry and llm Crow prcsenlll tbe most compolUns justification for rakinlf> ;:
...
. remedial steps, bla<:kll
nat been alone in facing v\nllcilt dis<:riminmion· and racc·b..nd
I
of opportUnity. SoI
need to flll that ouL
.
·
0 .
.
I.
e~clusion,thc~~;')
nob'v~
i~
~ {{~
~'
·~
dcnill~
fc
'I•" l'~c.'.'
. I
.~~
2.
Walle!>'& Co.: On the •otasldc issue, I need to clarify tbc dls<:ussion I have in ~.1 •
current dr
bout sun&ets. Here's the p!Dblcm. l Il!Commo=nd on NEC-Ind effort to think about~_.,;.
equal;;,~-
· appr<>Pri•
m...,.rcs to dctcrminc when to declare .victorY in the fight to create
cntrcpt<; curial opportunity ·- I point out that the pr"J'Cr ratios to •••• ""' not ·..,l£,evidont.A )r- ·
· (Min tlY vendors as PJ"'P<'rtion of :til vendor&? Shure of minority contracts io compad;on
sb
of minorities in the adult
or minorities in the coUogc-cducoled populuti<>n?l
;
orgc notes, however, that the Court m Adam"d and Cro1on '"'""" pretty clear about tbc need \l"l,l"
with~
pop~t\on:
1,1.~
V. ~
to focu• on the pool of qualified minority llJmS,
(~J;;.
(,
But this de!ini;lon of the aoltnJlkes sense as the test onl if the com lib• lnte"'''
henCe the purpose of tbe rogrum) is to remed diliCrimination
th< conrmcrlng agency, ond r;/'
1 our tmme ltlte o jectl•
y to ensure thot agenctes o usm...s WI 1 mtnon ••• tn a o•"«-"
1
\).
f·
fairly representative of minority firms'. presence in that mari<et.
=
Of course our real purpose ls broader. The
~y
~._.,.
prob~rn i• far less a nu>Uer of the Fedcr.ll""£:.;
(o
~..
~~
f~
·--
�-.
ID:202-395-7294
S:..ENE~AL COUNSEL
JUL U:>'!.:l!:>
!_:!:Lr2 No .UU4 1-'.Uj
>-
a:..
0
broader~
c~ring
govemnwnt's discrimination, than the
objective of
!he problems in the
intcinal worJUngs of those particplar induslries, the j!!'tterps of subcontracti!Ul· the issues of
fmuncin • and so forth. 1 have assumed. witboutlirguing the point, that there is room. tu urguc
· t tnt section S of the 14th Amendment wi>uld give Con!ll"''S (and pcrhllps us?) some outbority to
·""lvc problems of discriminl\llon (oot mere diversity cont:erns) beyond anY spocitic dlscriminntion
(.)
0
10
::c
0...
>c:: .
<(
c::
·m
by rhe. Federal govemuncnr.
Am 1 concct. iri this? Noic that.J'm not changing the requirement of u factuul predicate
of di!ICI'iminotioit. The issue is 'whn.<t discriminatiOil. 1 want to argue thllt under &cellon S of 1he
14th Amendment it neOd nDl be our own discrlminatioD. Please lot me knOW whlll you obink.
3. Waller & co.: WheR nte you on the Issue of gender-based preference progl'luns? W• have·
a general oensc obat there needs to be some curef\11 homework done in onticipatlan of litigution
and. perhaps: legislative buldcs. · But thoR Is obviously no need for Ada,...nd-stylo guidlltiCC·
You •bould u:y to orystali"" your th011ghts uboul how agencies can be encouraged to do tbllt
bomcworlt ...;gnmcnt, withoul miscommunicalinl nny 'int.:ntion to raiiiC the hurdle higher thon
the Supreme Court has.
cc:
'George Stcphanopou,os
Michael Waldmu.n
James Castello
Bill Yeoman~
Down
lohns~n
Mike Smull
�Withdrawal/Redaction Sheet
Clinton Library
DOCUMENT NO.
AND TYPE
001. memo
SUBJECTrrJTLE
DATE
Attorney General to President Clinton, re: Choices Following
RESTRICTION
6/23/1995
P5
6/21/1995
P5
6/12/1995
P5
Adarand (5 pages)
002. memo
To President Clinton, re: Policy and Strategic Choices Following
Adarand - Draft (5 pages)
003. fax
DOJ to Chris Edley, re: Affirmative Action (4 pages)
b~
174
I g0
\1-~
COLLECTION:
Clinton Presidential Records
Counsel Office
Christopher Edley
OA/Box Number: 5747
FOLDER TITLE:
Affirmative Action- Adarand/Post-Adarand Implications [2]
2008-0308-F
wr892
RESTRICTION CODES
Presidential Records Act- 144 U.S.C. 2204(a)l
Freedom of Information Act- IS U.S.C. 552(b)l
National Security Classified Information ·l(a)(l) of the PRAI
Relating to the appointment to Federal office l(a)(2) of the PRAI
Release would violate a Federal statute j(a)(J) of the PRAI
Release would disclose trade secrets or confidential commercial or
financial information j(a)(4) of the PRAI
PS Release would disclose confidential advice between the President
and his advisors, or between such advisors ja)(S) of the PRAI
P6 Release would constitute a clearly unwarranted invasion of
personal privacy j(a)(6) of the PRAI
b(l) National security classified information l(b)(J) of the FOIAI
b(2) Release would disclose internal personnel rules and practices of
an agency j(b)(2) of the FOIAI
b(J) Release would violate a Federal statute j(b)(J) of the FOIAI
b(4) Release would disclose trade secrets or confidential or financial
information j(b)(4) of the FOIAI
b(6) Release would constitute a clearly unwarranted invasion of
personal privacy l(b)(6) of the FOIAI
b(7) Release would disclose information compiled for law enforcement
purposes l(b)(7) of the FOIAI
b(S) Release would disclose information concerning the regulation of
financial institutions l(b)(S) of the FOIAI
b(9) Release would disclose geologic'al or geophysical information
concerning wells j(b)(9) of the FOIAI
PI
P2
PJ
P4
C. Closed in accordance with restrictions contained in donor's deed
of gift.
PRM. Personal record misfile defined in accordance with 44 U.S.C.
2201(3).
RR. Document will be reviewed upon request.
JSg
�. /.~
.•·. ~·
.
....... ·~
..· ..........
;
-~.. ,''
·.-
.\ .
···/,/\
>-
a..
0
(.)
0
10
:r.
a..
Th.e President
TO;
<(
FROM:
0::
.ca
SUBJECT:
Policy ana Strategic Choices Followlu!! Ac.lar.<':lnd
By imposing a. more st.ringent: c_onstitutional t..~!;IL uu .L.::del:al
programs _that consider race, the Supreme Court's decision in
Adarand v. ~raises the need !or fundamental policy ~ml
strategic de-cisions about how the government will· respond. To a
large extent, those decisions will be driven by three urgent
imperatives: · (1}. the need to respond to litigation challenging
federal programs, including expected tast-moving request.s for ·
restraining orders, particularly in the contracting area, (2) the
need to advise federal agencies charged. with administration of
such program~, many of whom award contracts on a regular basis,
and (3) the need to respond to anticipated etforts in Congress t.o
amend various appropriations and authorization bills to eliminate
or deny funding-for affirmative acti.on programs.
POLICY OPTIONS ·
Policy Option 1
rm T:'RUan t
Defend programs that are determined to be defensible
tO ~iit.rand
•
.
P1.lrR1l.:...nt to this approach, the Adq.rand legal standard would
become the primary measure of whether a particular affirmative
action progr?Jm would. continue. When a p:rogram was challenged,
.the Deparctment of Justice would determine whether the progr~m
could, in ao6o f~ith, be defended under the strict scrutiny
standard imposed-in Adarand. There would be an overriding policy
determinat~o.n that any prng,..&m that. could reasonably be defended
should be defended. Beyond that determination,·policy would
.
yield to legal judgment, e:X:.cl'!'pt inRnf.<=~-r as policy mixes with law
in dete,i:mining whether. an interest is compelling or a program's
3tructure is narrowly tailor~d. Wh8rP. r.h~ Attorney General
determines that a challenged program is.not defensible in.the
.·absence of opecifia reforms, the Departm~?.nt-. wilL not defend the
program but will suggest specific refo:rrns for the agency's
consideration.
·
·
PlC'OS
· u
>-
0::
At least in the short term, thie approach gives the hrn~dest
possible protection to affirmative action programs.
All.l~uugh thel.-e will likely be programs ·that. the Department of Justice will conclude cannot be defended applying ·strict
scrutiny, Lhis option ~nsures that o.o mo:~.ny progra.ms·as
practicable will be defended·in court.
�>-
0..
0
(.)
0
1-
0
o
::J:
0..
·. Spirited
and
11
the base 11 who are r::oncernt?.n
~hcmt
a
>-
. 0::
affirmative action.
o
Reliance on-the adversary system to surfac~ suspect programs
will tee up th~ issue:; in a_ foct.tsed mannP.r. 'T'hR ~t:t-.orney
General can then contribute ideas for adjusting programs as
worr~nted.
o
<C
·
Thi:a option e:hifts to courts a p·art of the· ult ~ m;;~ t:P.
nt"!<:":!ision
regarding the·legitimacy of specific programs .
.
Cons
o
This option forgoes
th~
opportunity initially to move away
from existing programe on policy grou::1.da in .<!il.n effort to
occupy the middle in this debate.
·o
·By
defending every defensible program, we will likely lose a
nwul.Jt:u. of cases in court, · thereby running ·the risk of
establishing bad caselaw.on affirmative actionand.creating
additic..Hld.l pressure to dismantle progr·o..m3.
Thic concern
would be ameliorated by exercise of the Department ·of
Justice's di::;i..:Lt!L.ion to decline to defend some minimolly.
defensible programs.in order to ensure that the litigated
challenges.were focu::.i~U. uu t:he st;~:ongest.programs.
Policy Option 2
Combine the Adarand legal detei.mination with a policy
judgment ,regarding ways to improve existing progrc:wu.;.
Following on the review. of affirmative action pL:U!:JLd.m8,
Adarand may provide added opportunity to consider policy changes
that reform e~isting programs. You would dire~t the. agencie~ Lu
develop new .measures to guard again$t abuses,· such as sham·front!;l
and pass-throughs, and to tighten and enforce graduation and
asset requirements. ·· The Department of Justice would defend those
programs that are reasonably defensible under Adarand, as stat.eci.·
in policy option 1.
Proa·
o .
This position demonstrates the Administration's view of
these programs as providing a short-term ''leg up" for those
persons the programs are intended to benefit.
·
o
Following Adarand, there is more incentive, as a legal
matter, to restructure programs.
·
o
Moving in this direction would show that the Administration
i ~. s::P.rious about ensuring against abuses, while continuing
to support affirmative action.
·
0::
a:l
�:
'There is broad·agreement,·even among
affirmative action, that. abuses should be
o
o
This option is consistent with litigation 1n support of
existing programs.
·....J
Cons
(..)
;-:,·
This level of reform may be viewed as too little and too ·
late by opponents of affirmative· action.
0
.~11pporters of affirmative action may view this option as a
retreat.
-
o
· Policy Option. 3
.
Go beyond Adarand to restructure programs more
dramat:i.aally, int:!lmHTI.g jettisoning some programs and moving away
from reliance on rac,e in others.
Pros
o
Moving in this direction may take the edge off of political
. o.ttacks by oppon~nts Of a.ffirm.at j_ve Rr.~.i nn _
Thi:J option co1.1ld make the .ltdministratto:n r:!pf>P.~r flexible
and willing to compromise.
o
Cons
o
another charge of
u
11
reversal ~f current pqlicy, risking
a
This-option represents
~o.ffling.
11
IL is :pl.""emature to conclude d:i! o. mo.tter of la.w that any
program is invalid pursuant to Adarand. Even Adarand itself
did J:lUL lnvalidate the progre,m at issue, }?ut cimply remanded
· the case for application of .strict scrutiny. . ·
'
)
o
AAY cutback on affirmative action that is not required by
Adarand will ~~ viewed as ret~eat by proponents of
affirmative action.
o
Cutbacks at this point.may make it appear that the
Adminiscrat:.ion ·is unwilling Lu l::iLo.nd fil.-m in .support
principles .
.o
o
of.
Because Adarand has been decided, the Administration may not
receive cred.it for leadership for proposing t.:hd.u~j'es in
affirmative action now.
Changes now could affect our ability to defend ·programs in
court.
·;,:
�. '
>-
0....
0
(.)
0
I-'
0
:I:
STRATEGIC OPTIONS ·
a....
In addition to this basic policy decision, one strategic
decision needs to be m~n~. In order to evaluate programs
pursuant to Adarand, it·will be necessary to undertake an
intensive e€fort to g<lt-hP.r ~nri develop.facts show whether there
is compelling need for a program and it is narrowly tailored.
·'!'he resources of .ths De-partment: of Justice alone are inadequate
to perform this function.
Strategic .Option_l
""·
Direct federal agencies to undertake faotual
deve~op~cnt ~Qgard~ng the prog~ams
th@y administer.
Under this option, you would direct federal a.gFln~.i P-s to
develop·the necessary facts upon which to base a determination
whether a program complied with the, new standard imposed hy
Adararid; This factual·base could.be relied upon by the agency
iL:;~E;~l! in determining the lawfulncoo of a program and by the
Atto:r:ney General in litigating:any challenge to a program. [see
Draft A].
Pro~;;
o
o
.o
Agencie~ luiuw
their own programs well o.nd a.re- in
position to develop a factual record quickly.
the best
· Agency. fact gathering is the usual manner in which this task
would be done. ·
Agencies already have in
procedures.
.f:'lcL~t::l
.administrative factfinding
Cons
o
The findings of agencies may not be viewed as impartial,
since agencies- can be expected to attempt. Lu 1;-~r.ese:r;ve their
own prqgrams.
o
. Some agencies have already demonstrated during the review
~that they may not be capable of completing this task. r.aul~.:;k.ly
and thoroughly.
Strategic Option 2
Creat.e an independent commission to lead· the factual
inquiry.
Pursuant to this option, you would appoint a small
independent commission of respected Americans to coordinate and,
where necessary, conduct the-fact gathering effort. The
commission would have authority to conduct public hearings and
>-
0:::
<(
0:::
IXl
....J
�>a..
0
(.)
0·
·10
:I:
a..
draw on the resources of federal. agencfes in
[ooa Draft BJ
>0:::
<(
a::·
Pros
0
The oommi,ad.on' s
ind~;>p~:n~A'nr.P. may
give its· findings. greater
credibility.
.
0
o
.
.
The commission could centrali2e and ensure uniformity in the
fact gathering. prooess.
. The
· commisoion might he viewed as sufficiP.nt-.1 y ~redible that
legislative action would be postponed pending its findings.
Cons
o
The commission would likely take a mJ.nl.mum of six months to
complete it.s work. Mco.nwhile 1 events, driven by lit:i gi'lr.icm
and congressional action', ·might. overtake it.
·.
'
o
aJ
.
If the commission is truly independent, there is a risk that
·it. wi'll ~LLdi.Y beyond its mandate or mo.]<:c findings with which
the Administration disagrees or which put the Administration
in a difficulL ~ulitical position.
·
·
o
There is the poL~uLld.l that a commission finding could
conflict with and undermine a litigation position.
o
There is little support among Democratic Members of Congress
.-tcir a commission.
�IT. S. Department
of Justice
·.~:!."
·'
.'
. The Ass<Xiatc Attorney General
...•
\
'"'
Washington, D.C. 20530 ·
~-.
· FACSIMILE T;RANSMITIAL COvER SIIEET
DATE:
TO:
FACsn\DLE NO.
U!LEPHONE NO.
FROM:
. FACSIMILE NO.
TELEPHONE NO •..
· .:rohri R. schmidt
·202/514-0238
202/514~9!j00
NUMBER OF PAGES INCLUDING COVER SHEET:
~...-:.L(_·_ _
----·.~~~~·-·.~~~·.·~~-·-··--~~
COMMENTS:
�>-
IL
0
(.)
0
10
::I:
IL.
>0::::
OPTIONS FOR AFFIRMATIVE.ACTION
REVIEW IN WAKE OF
1.
<(
~n~RANQ
0::::
-·
CXl
Indicate that the review Will: go· fnrw~r.d as planned •.
downplaying any imp·agt of the Supreme- Court decision.
This 1:\.pproac::h would emphasize that thf?. m1rrent review is a
policy.-bi:ised analysis, not.dictated.. l:ly l~qal . r.nnoerns.
Moreover,
th~ Court in Adarand did .not actuall.y -invalidab-1 ~ny prog·rams but
mert;~ly
1
subjected
race-b~scd
t • ·u
proqrams to "strict f;r.ru 1ny as to
noomp~lljng
whether they are "narrowly to.ilorcd" to serve a
outright) a
i.nterest." This .approach would imply (or state
vi~w
that most clirrenl. £edeia.l proqrallts ca.n curviva such ~trict
scrutiny.
'J.'he negative to .tnis ~pproach are that it ignores; th~
like.Linood that many· cur.i:"et1t programs may not be able to ·survive
the new rigorous scrutiny.
This ls particularly true in the
absence of a congressionally-supported process -- which ia
unlikely -- to make the necessary faclual inquiries, con~idcr·
!
'
non-race-:based alternatives and re.enacl' programs a:s, appropriate.
Moreover, this. approach would appear to bt;~ trying to minimize or
.dis1-'egard what will ·.unquestionably :ne viewed ytmerally as· a mo.j or
su~reme Court decision requiring greater scrutiny or race-based.
federal programs.
�Instruct that thA review
for all race-based programs
sorutiny test.
.2.
. >0::::
<(
0::::
CXJ
-
This approach would <"Cknowledge that, in addition to the
analysis already underw~y, t.hA supreme court now-requires a :new
level of legal scrutiny .for all race-based federal programs.
The~
{.;;;~\
,~· · Pi·esident could specifically ask the Justice Department to
.,
.
.
-
a.nalyze all. federal race-based prnqr.ams for compliance under the
.
.
new· ·standard, or the ras:ponsibil i ty for· the·· analysis · could be
t:~nalysis
Thi!;
placed in.the current raview.
would also identifyr ·
cUlY further steps (suoh as congressional hearings
that
Q.rt:!
or
findinqs)
needed to 3ust.:dn programs that are n~termined to be
aesirable.
This appL·oach gives recoc;Jnition to the leqal impact of the
supreme court_ opinion.
:x,-ecogn1t1on of
I.t
also may lay th~ groundwo'l"k for the
le~<ll consideration~
'
have to be mod.i:!ied.
ac a raas:on why somP. proqrams
However, it may be taken b~ some
affirmatiVe action advocates
as
implying-
Q.
leGe aqgressive.
defense of al.l. current progntn1s in light of the Adarand decision~
3.
Appoint a bi-partisan comm.is::olonto re.vie-..r o.ll' ourrent
race-based federal programs in light of the new legal
·standard.
This would· follow the approach adopted by many localities
.
.
when the supreme court applied "strict.scrutiriy" to their racebased programs in the Crosson decision -- appointing com~issions
(oft.P.n consisting of people such as former judges)
to
review
�>-
a..
0
(.)
programs, determine faots as nac~ssary, and recommend reenactment
0
.10
::I:
a..
>-
ox:- t;hanges.
0::
<(
0::
a:J
Sll.Cll an c.pprotich
.
oan
-
be- argued to. b~ ll!';~ful
.
in·order to
derend v~rious proqrams under the riaw ~tandard -- which is why
.most locall tles adopt.ed this approach after Cros~nn.
However,
the ability of such a commission to work ef.fectiv~?.ly to. defend,
current programs may depend heuvily ori the ultimat~ willingness
ot congress to reenact themi which ic what typically h~ppened at
the local-level •. It is not eertuin. under current law whAther
Congressional .• judgment_
at
the_ time of enactment -- as; pass.t?-ci
to
· retroactiVe or atter-the-fi:\Gt -rationalization ~- 1e nece~sar~ t.n
meet the strict scrutiny test.
·a commission _is a Jtey
· effect.
to· lts
The appointment
obviously the com?osition of· such
political impact- and ultimate
O! SllCh · a
commission would pr_~sumably
. moot the current att:irmat:.ive action review.
One disadvantage of 'this approach is l.ha.t it will look like ·
an effort to cop-out· from the at:tirmative actlon 1:eview.
However, the Adarand decision might provide the ::;ubstantive and
political cover for doing that if it is desired ..
�Withdrawal/Redaction Sheet
Clinton Library
DOCUMENT NO.
AND TYPE
SUBJECTffiTLE
DATE
RESTRICTION
Igf
001. memo
Raymond Kogut to Christopher Edley, re: AA Help (2 pages)
511/1995
P5
002. memo
Christopher Edley to Susan Carr et al., re: EEOC (partial) (3 pages)
4/28/1995
P5, b(6)
I
~~
COLLECTION:
Clinton Presidential Records
Counsel Office
Christopher Edley
ONBox Number: 5749
FOLDER TITLE:
Affirmative Action- EEOC [I]
2008-0308-F
wr893
RESTRICTION CODES
Presidential Records Act- 144 U.S.C. 2204(a)l
Freedom of Information Act- )5 U.S.C. 552(b)l
National Security Classified Information )(a)(l) of the PRA)
Relating to the appointment to Federal office )(a)(2) of the PRA)
Release would violate a Federal statute )(a)(J) of the PRA)
Release would disclose trade secrets or confidential commercial or
financial information )(a)(4) of the PRA)
PS Release would disclose confidential advice between the President
and his advisors, or between such advisors )a)(S) of the PRA)
P6 Release would constitute a clearly unwarranted invasion of
personal privacy )(a)(6) of the PRA)
b(l) National security classified information )(b)(l) of the FOIA)
b(2) Release would disclose internal personnel rules and practices of
an agency )(b)(2) of the FOIA)
b(J) Release would violate a Federal statute )(b)(J) of the FOIA)
b(4) Release would disclose trade secrets or confidential or financial
information )(b)(4) of the FOIA)
b(6) Release would constitute a clearly unwarranted invasion of
personal privacy )(b)(6) of the FOIAl
b(7) Release would disclose information compiled for law enforcement
purposes )(b)(7) of the FOIA)
b(8) Release would disclose information concerning the regulation of
financial institutions )(b)(8) of the FOIAl
b(9) Release would disclose geological or geophysical information
concerning wells l(b)(9) of the FOIAl
PI
P2
PJ
P4
C. Closed in accordance with restrictions contained in donor's deed
of gift.
PRM. Personal record misfile defined in accordance with 44 U.S.C.
2201(3).
RR. Document will be review,ed upon request.
�>.,-
a..
0
(..)
0
I0
:c
a..
>0:::
E X E C U T I V E
0 F F ICE
·oF
T H E
P R E 8 I~ E
co
-I
01-May~1995
12:34pm
(..)
J
;:::
TO:
Christopher F. Edley, Jr
FROM:
Raymond P. Kogut ~
Office of Mgmt and Budget, VAPD
CC:
Franklin S. Reeder
SUBJECT:
RE: AA Help
Response from.-Frank Reeder & Ray Ko
Chris:
Thanks for inviting us to comment on t'he draft piece on
Federal· civilian employment affirmative action. Our initial
reactions follow:
·
The OFCCP piece is better focused that the one on Federal
employment.
It's interesting that so much space was given to the
already dismissed perception that quotas and reverse
discrimination· are major concerns by including .the examples from
the only 2% of respondents who specifically raised the issue(s)
Such isolated comments don't deserve that much emphasis.
With regard to the Federal employment piece, it has it's · ·
highs and lows. Data use is'good, but not the whole story.
For
example, OPM just released a contract study showing that
mino~ities are disciplined 2+ times more often than others.
·.Further, the NPR- and NPC-identified problems with current
dispute resolution systems (MSPB/Negotiated Grievances/FLRA
processes for mixed cases and the EEOC complaint process) is not
raised, nor is the timeliness of those processes.
The whole
piece seems EEOC directed, but would be better oriented toward
the Federal civilian workforce situation.
It's not forward
looking. FTEs and reductions are issues to be confronted, but
bnly anecdoially acknowledged. Doesn't suggest any reforms.
As to the rewrite of MD-715, our only involvement with this
has been on the procedural end.
Late in the Bush Administration,
an earlier draft was floated'by.the President's Council on
Management Improvement: which had some serious concerns about the
process. Early drafts called for fully centralizing the
complaint investigation process in EEOC, with agency
reimbursement. EEOC was to have its FTEs and.spending increased,
but with no offsets from the agencies.
The OMB expert on the
substance of those deliberations is Joe Wire in Ken Apfel's area ..
. He was the EEOC examiner at the time.
�>- .
a..
0
(.)
0
10
:J:
a..·
Since you asked, here are my personal opinion·on goals and
timetables for agencies and critical job elements for relevant
Federal managers.
(Is that in contrast to irrelevant Federal
managers?)
On both I vote a strong yes with one proviso. As a
general rule, that which is not measured does not get dc:me.
Asking agencies to .set their own goals and timetables ·seems a
reasonable step. · As to setting up a CJE for ~ndividual managers,
my only reservation is that measurement be over a long enough
period of time to be meaningful. Depending on turnover, it may
take a while for the manager of a ~mall unit to chartge its
demographics. Nevertheless, making equal employment opportunity
a critical job element for relevant Federal managers is both
symbolically and substantively.important.
Ray· Kogut contribu~ed to the above. He's sending it all to you
since Frank Reeder is off to Camden Yards for season opener.
n\
\ 'b .
>-
0:::
<(
0:::
al
�.-.·.-
'
>-·
0.:
0
(..)
0
t-
o
:::z::
a..
>-
0:::
E X E C U T I V E
0 F F I C E
0 F
T.H E
PRES IDE NT
<C
0:::
CD
28-Apr-1995 04:04pm
Be~ow.)
TO:
(See.
FROM:
Christopher F.. Edley, Jr
Office of Mgmt and Budget, EG
SUBJECTi
EEOC
Just had a 30 minute chat with Gil Casellas.
We agreed.that:
(2) EEOC staff wil.l work .with Susan/OMB to develop a bold option
for POTUS. That option will challenge Dole, Gran:m and Gingrich
(who claim to be against preferences but in favor of vigorous
enforcement) ·to invest in the EEOC· the resources necessary over a
period of years· to "eliminate" the backlog.
(3)
Ori the ADR stuff -- sounds like the proposal the Commission
just adopted was carefully negotiated out, . and rel'ies on voluntary
mediation, rather than arbitration. You should obviously take a
look at it, but I would be surprised if there is enormous policy
'gain to be had·by pressing for something different.
The real
issue is:
(4) Gil will think about how much of the muti-face~ed reinvention
effort in which they have been engaged for the past four months '
can and should be rolled out as part of the President's
Affirmativ~ Action rollout.
His insti~~t is to package all of it,
but he will think about ft.
So, as Bob Litan suggested yesterday,
what we might end up with for EEOC' is (a) trumpeting. what we have'
already been up to, and .(b) perhaps a bold opt ion to get rid of
the backlog.
(5)
A final issue, (c) is what to do with Mangaement Directive
715 [MD-715], ·which was drafted under Bu~h but· never finalized.
The questions are (i)
whether we should.reverse the Reagan
Administration's elimination of diversity goals for Federal agency
· employment (the Bush draft obviously did not) , and (ii) whether we
should have a government-wide requirement that EO issues be
included in the critical job elements used in performance
appraisals for federal managers.
·
·
�I think the policy answer to both questions sho~ld be ''yes,
~
Q_
C)
~
C)
~·
C)
:c
Q_
~
~
~
~
·~
�~
a..
0
C,..)
0
1--
0
:::c
a..
carefully."
(How can we .defend keeping goals & timetables for
>0::::
private employers under E.O. 11246, but not have goals and
<(
timetables for federal ag~ncies who have job categories with
a:::
manifest imbalances?)
But we need to get to closure on these next IXl
week.
Peter, I think that means generating those 1-page option
pro-con sheets f6r each of these two issues. You ~ight try to
talk Susan into handling it for you. Good luck.
·
-
Finally, Gil is eager to ~orne over and brief Litan on all of their
activities.
I explained that, while that's a terrific idea, Bob
is in Oklahoma City mode. So timing is not ideal. Background:
-Gill and EEOC are feeling underappieciated and unloved by the West
Wing. That problem is at Leon's doorstep, but we have to cope
with the emotional fallout.
Distributl.on:
TO:
TO:
Susan M. Carr
Peter M. Yu
CC:
CC:
CC:
CC:
Robert E. Litan
Sharon K. Thomas
Alan B. Rhinesmith
Douglas N. Letter
·.·
�Withdrawal/Redaction Sheet
Clinton Library
DOCUMENT NO.
AND TYPE
001-a.
res~:~me
SUBJECTfi'ITLE
DATE
Paul M. lgasakt [parttal] (I page)
I 0/12/1994
RESTRICTION
P6/b(6)
~;e----~PP;a~u~l~St~evwe~n~M~tm·ll~er~(npmart~t~al~JI(Tinpa~g~eT)-----------------------+J~0/~12~/~19~9M4r-~r6~6)
002. memo
Susan Carr to OMB Director, re: Administration's position on HR 344
(3 pages)
1/25/1995
P5
COLLECTION:
Clinton Presidential Records
Counsel's Office
Christopher Edley
OA/Box Number: 5749
FOLDER TITLE:
Affirmative Action- EEOC [3]
2008-0308-F
wr454
RESTRICTION CODES
Presidential Records Act- 144 U.S.C. 2204(a)(
Freedom of Information Act- IS U.S.C. 552(b)l
PI
P2
P3
P4
b(l) National security classified information !(b)( I) of the FOIAI
b(2) Release would disclose internal personnel rules and practices of
an agency l(b)(2) of the FOIAI
b(3) Release would violate a Federal statute l(b)(3) of the FOIAI .
b(4) Release would disclose trade secrets or confidential or financial
information l(b)(4) of the FOIAI
b(6) Release would constitute a clearly unwarranted invasion of
personal privacy i(b)(6) of the FOIAI
b(7) Release would disclose information compiled for law enforcement
purposes l(b)(7) of the FOIAI
b(8) Release would disclose information concerning the regulation of
financial institutions i(b)(S)·of the FOIAI
b(9) Release would disclose geological or geophysical information
concerning wells l(b)(9) of the FOIAI
National Security Classified Information i(a)(l) of the PRAI
Relating to the appointment to Federal office i(a)(2) of the PRAI
Release would violate a Federal statute i(a)(3) of the PRAI ·
Release would disclose trade secrets or confidential commercial or
financial information i(a)(4) of the PRAI
PS Release would disclose confidential advice between the President
and his advisors, or between such advisors la)(S) of the PRAI
P6 Release would constitute a clearly unwarranted invasion of
personal pd~acy i(a)(6) of the PRAI
C. Closed in accordance with restrictions contained in donor's deed
of gift.
PRM. Personal record misfile defined in accordance with 44 U.S.C.
2201(3).
RR. Document will be reviewed upon request.
�~n
EXECUTIVE OFFICE OF THE PRESIDENT
OFFICE OF MANAGEMENT AND BUDGET
WASHINGTON, D.C. 20503
w~
Fj~
.0
:I:
a..
><c
·c::
0::
. 1anuary 25, 1995
.THROUGH:
FROM:
Susari Carr/Anna Briatico
·suBJECT:
Ailleridment to the Age Piscriminationip. Employment
Act (ADEA) of 1967 for State and Local Firefighters
and Law Enforcement. Officers
Wh~t should be the Adrrilinstration's position on HR 344, a bill to exempt State
and local firefighters and law enforcement officers from the ADEA?
.
.
Background
The Amendments of 1986 to the ADEA-established an exemption for the hiring and
retirement of State and local law enforcement officers and. firefighters. This ·exemption
expired. on December 31 ,· 1993.
·· Yesterday, the flouse Employer-Employee Relations subcommittee (Harris Fawell,
Chairman) held a hearing on HR 344 (Pickett (D) VA) to reinstate the exemption of State
and local firefighters and. law enforcement officials from the hiring and retirement provisions
of the ADEA.
.
.
.
Wittiesses at the> hearing represented the AFi-CIO, AARP, the City of Alexandria,
Virginia, and law enforcement -and firejghters organizations. There were no Administration
witnesses. ·
J
.
The AARP has .contacted EEOC, strongly opposing the bill. EEOC also strongly
opposes this bill and would like to ~end a -letter to Congress expressing its views.
Related Efforts to Pass Similar Le1;slation During the Last Congress
This bill is very similar to HR 2722, which passed the House during the last
.Congress. EEOC sent an OMB-cleared letter to the Hill opposing the bill in September
· 1993. The White House later withdrew support for the letter.
·
·
co
�>-
c..
0
c.:> .
0
r
:0
A lot of the debate over HR 2722 occurred in the context of the Crime Biti. At that
time, the Administrati0n was prepared to support a temporary, three-year extension of the
exemption, thereby allowing further study of age restriction policies for publiG safety
workers. Although HR 2J22 was included in the House-passed version of the Crime Bill, it
was excluded from the version that became law, largely because of Senator Metzenbaum's
· strong opposition.
:I:
c..
>-
0::
<(
0::
co
. .....1
· Timing of .Congressional Action this Year
:
·.
.
..
'.
.
.
.
.
. During yesterday's hearing, Chairperson Fawell indicated that he plans to move on
this issue quickly and may be introducing his own bill shortly.
.
Domestic Policy Council's Position
· The DPC .staff (Jose Cerda) supports a three-year extension of the exemption.
According to Cerda, this expression of limited preference would support the coalition of
police, firefighters, mayors and Federal law enforcement officiais who are strong proponents
of the exemption, while millimally upsetting the AARP and Civil Right~ Community, ·
·Options·
.
1. .
.
Advise EEOC. that the Adrililiistration
time.·
Pros -
Cons -
2.
.
.
will not bE( taking a position on HR 344 at this
. B~ys the Administration some time on a largely "rio-wiri" political issue .
.. The Administration ~onceivably could wait to express its views until
legislation is scheduled for markup ?r House floor consideration ..
Potentially limits the Ad~inistration;s ability to influence the outcome of
this legislation. It's unlikely that the issue will become less difficult later
in the legislative process.
·Advise EEOC to prepare a letter to the House Economic and Educational Committee
· ·
opposing HR 344.
Pro:.
Supports EEOC efforts to end age-based discrimination ..
. . •.
Cons·-
·.
'
·~
Makes Administration' look indecisive -- i.e., 'we were willing to accept -a
three-year exemption last year. Also makes Administration vulnerable to·
criticism of double standards. The Federal, Government is exempted from ,
the ADEA and maintains mandatory age restrictions for its law
S~,-0-E_N__ ·
/i
enforcement (and certain other) personnel.
t
~ \'&~· ~
~-
q_«-<::;;
1-.
2
"t-~
v
Al(
.
.
.
.
.,.,
'V
. T
�'
.....
>-
c...
o·
(.)
0
1-
·-o
3.
·Advise EEOC to prepare a letter to the House &oriomic and Educational Committee
stating the Administration prefers no exemption, but could accept a three-year
.extension of the exemption.
-Pro.,.
Is consistent with the Administration's position on the issue during
year's Crime Bill debate.
Con-
la~t
Recommendation
-Becaus~ of the tie with the Crime Bill, we recommend that you discuss which option
the Administration should pursue with the Chief of Staff, who was heavily involved in the
discussions over the last year. Jack Lew and Chris Edley favor Option 3·..
.
.
~s\OENr./.
~~( ~
,,
Q.n.___v
cc:
-~
Jack Lew
Jose Cerda
-;
:>.
v
3
~·
\
-
c...
>0::::
<(
0::::
. co
Will not fully satisfy the opponents or proponeQts of HR 344.
-
::I:
~
::0
:'\
.
�Withdrawal/Redaction Sheet
Clinton Library
DOCUMENT NO.
AND TYPE
001. memo
SUBJECTn'ITLE
DATE
Lisa Jacobs to Peter Yu, re: NSF's Urban Systemic Initiatives
Program (I page)
517/1995
RESTRICTION
P5
t8S
COLLECTION:
Clinton Presidential Records
Counsel Office
Christopher Edley
ONBox Number: 5749
FOLDER TITLE:
Affirmative Action EEOC Research Resource Documents [I]
2008-0308-F
wr895
RESTRICTION CODES
Presidential Records Act- 144 lJ.S.C. 2204(a)i
Freedom of Information Act- 15.lJ.S.C. 552(b)i
I' I
P2
P3
P4
b(l) National security classified information i(b)(l) of the FOIAI
b(2) Release would disclose internal personnel rules and practices of
an agency i(b)(2) of the FOIAI
b(3) Release would violate a Federal statute i(b)(3) of the FOIAI
b(4) Release would disclose trade secrets or confidential or financial
information l(b)(4) of the FOIAI
b(6) Release would constitute a clearly unwarranted invasion of
personal privacy l(b)(6) of the FOIAJ
b(7) Release would disclose information compiled for law enforcement
purposes l(b)(7) of the FOIAI
b(8) Release would disclose information concerning the regulation of
financial institutions l(b)(8) of the FOIAI
b(9) Release would disclose geological or geophysical information
concerning wells i(b)(9) of the FOIAJ
National Security Classified Information i(a)(l) of the PRA!
Relating to the appointment to Federal office i(a)(2) of the PRAJ
Release would violate a Federal statute i(a)(3) of the PRAI
Release would disclose trade secrets or confidential commercial or
financial information i(a)(4) of the PRAI
P5 Release would disclose confidential advice between the President
and his advisors, or between such advisors la)(5) of. the PRAI
P6 Release would constitute a clearly unwarranted invasion of
personal privacy i(a)(6) of the PRAJ
C. Closed in accordance with restrictions contained in donor's deed
of gift.
PRM. Personal record misfile defined in accordance with 44 U.S.C.
2201(3).
RR. Document will be reviewed upon request.
�05/07/95
15:10
'5'202 514 5715.
DOJ-OPD
141002
U.S. Department uf Juslice
>-
a..
0
(.)
Office of Policy Development
0
r-
0
:::c
a..
>-
0:::
0:::
cc
- .....J
May 7, 1995
MEMO:P.ANDUM
TO:
~eter
Yu
FROM:
Lisa Jacobs
SUBJECT:
Additional Info. on the NSF 1 s_ Urban systemic Initiat.ives
Program (USI)
· Attached is an additional background piece on the USI Program.
It. I s not particularly useful in terms of program results.
I Im
. pla11ning to check LO see if the initial. grants have made any
discernible resulLs yet.
Admir.r.edly, from a "let's depoliticize the issue" viewpoint,
programs like this are attractive, but I don't see
them as ever having the p6Lential to replace programn which are
ra.c:e o·r g~nder specific. There a:r·~ any numbel.· of issues which are
p~culi~r to race or gender· {e.g. blacks have disproportionately
high drop out n:~.t.es in jm1ior high and high !:iChool; gi1.;ls, for a.
variety of ieasons, h~come less inr.erested in _the sciences.
(typically during junior high school) and begin moving in differ:r=nl:
pareer directions) that ckn. only he addressed by programs which
focus on th~ specific grotip which ma.:n ·i 'fP.sts the "problem." Thus,
we r 11 be· on stronger footipg to the r:xtent. that. w~ c!al"l. jusr.ify the
need for t.he programs tha~ currently exist. :r:ache1.· than t.ryi11.g r.o
make them· mo:r.e palatable by "neutralizing" t.hP-m.
rac~-neutral
�Withdrawal/Redaction Sheet
Clinton Library
DOCUMENT NO.
AND TYPE
SUBJECTffiTLE
DATE
RESTRICTION
I 8Le.
001. memo
G. Stephanopoulos and C. Edley to President Clinton, re: Affirmative
Action Policy Issues (14 pages)
4/20/1995
P5
002. memo
G. Stephanopoulos and C. Edley to President Clinton, re: Affirmative
Action Policy Issues (14 pages)
4/20/1995
P5
lf=7-
003. memo
To President Clinton and Vice President Gore, re: Affirmative Action
Memo Excerpts (3 pages)
4/20/1995
P5
I gg
004. memo
G. Stephanopoulos and C. Edley to President Clinton, re: Affirmative
Action Policy Issues (II pages)
4/19/1995
P5
I &~
005. memo
G. Stephanopoulos and C. Ed ley to President Clinton, re: Affirmative
Action Policy Issues (II pages)
4/19/1995
P5
1Cl D
006. memo
G. Stephanopoulos and C. Ed ley to President Clinton, re: Affirmative
Action Themes and Hard Questions (16 pages)
4/7/1995
P5
tq I
007. memo
G. Stephanopoulos and C. Ed ley to President Clinton, re: Affirmative
Action Themes and Hard Questions (16 pages)
4/7/1995
P5
1qd- t>~ 19' I
008. memo
G. Stephanopoulos and C. Ed ley to President Clinton, re: Affirmative
Action Themes and Hard Questions (16 pages)
4/7/1995
P5
lq3
COLLECTION:
Clinton Presidential Records
Counsel Office
Christopher Edley
OA/Box Number: 5759
FOLDER TITLE:
Affirmative Action POTUS Memo(s)- Final
[I]
2008-0308-F
wr896
RESTRICTION CODES
Presidential Records Act- 144 U.S.C. 2204(a)l
Freedom of Information Act- 15 U.S.C. 552(b)l
PI
P2
PJ
P4
b(l) National security classified information J(b)(l) of the FOIAI
b(2) Release would disclose internal personnel rules and practices of
an agency J(b)(2) of the FOIAI
b(J) Release would violate a Federal statute J(b)(J) of the FOIAI
b(4) Release would disclose trade secrets or confidential or financial
information J(b)(4) of the FOIAI
b(6) Release would constitute a clearly unwarranted invasion of
personal privacy J(b)(6) of the FOIAI
b(7) Release would disclose information compiled for law enforcement
purposes J(b)(7) of the FOIAI
·
b(8) Release would disclose information concerning the regulation of
financial institutions J(b)(8) of the FOIAI
b(9) Release would disclose geological or geophysical information
concerning wells J(b)(9) of the FOIAI
National Security Classified Information J(a)(l) of the PRAI
Relating to the appointment to Federal office J(a)(2) of the PRAI
Release would violate a Federal statute J(a)(J) of the PRAI
Release would disclose trade secrets or confidential commercial or
financial information J(a)(4) of the PRAI
PS Release would disclose confidential advice between the President
and his advisors, or between such advisors Ja)(S) of the PRAI
P6 Release would constitute a clearly unwarranted invasion of
personal privacy J(a)(6) of the PRAI
C. Closed in accordance with restrictions contained in donor's deed
of gift.
PRM. Personal record misfile defined in accordance with 44 U.S.C.
2201(3).
RR. Document will be reviewed upon request.
�THE WHITE HOUSE
WASHINGTON
. .April 20, 1995
MEMORANDUM FOR TIIE P~ENT.& THE VICE PRESIDENT
·.
.
.
::j
~.
~
From:
George Stephanop~ Christophe?tfiey, Jr. & Peter ~ ·
Re: ·
Affirmative Action: Policy Issues
This memorandum presents options regarding federal affirmative action policy. Part I outlines
options in four areas: education, employment, procurement, and broadcast licenses. Part II offers
three alternative, broader pe,rspectives that may be useful in your deliberations. A subsequent
memorandum will discuss the message, communications, and political dimensions of these policy
choices.
I. AFFIRMATIVE ACTION IN
EDUCATION, EMPLOYMENT, AND PROCUREMENT
A.
Education: Race- or Gender-Specific Scholarships
Background. The central issue in the area of education concerns scholarships for which race or
gender is a condition of eligibility. This issue has two dimensions: (i) scholarships administered.
by universities receiving federal assistance and 'tii) federal scholar:ship programs.
'
With regard to (i), the current Administration policy for enforcement of Title VI, announced
by Secretary Riley in February 1994, · permits the use of race as a condition of· eligibility for
financial aid in order (a) to remedy past discrimination or (b) to promote diversity, provided the
measure is narrowly tailor.ed and does not unduly restrict access to financial aid for nonminority
students. A measure is "narrowly tailored" if (1) race-neutral means would have been
ineffective; (2} a less extensive or intrusive use of race would have been ineffective; (3) the
measure is of limited extent and duration, and is applied in a flexible manner; (4) the institution
periodically reviews the continuing need for the measure; and· (5) the effect on non beneficiaries
is sufficiently small and diffuse so as not to unduly burden their opportunity to receive financial
aid. ·These restrictions apply to university-:-administered aid, whether publicly or privately funded .
. Approximately 3.3% of all undergraduate financial aid, 4.3%• of all graduate financial aid, and
12% of all professionaF-school financial aid is administered through such scholars~ps.
Current policy with regard to gender-specific scholarships provides that institutions may not
discriminate on the basis of gender, but may administer privately-:.funded gender-specific
WJC LIBRARY PHOTOCOPY
�scholarships if the .overall effect of such scholarships does not discriminate on the· basis of
gender. The majority of gender-specific scholarships are limited to men, rather than women.
.
..
The federal government also directly administers a ·.number of race-· or gender-specific
scholarship programs. All of these are designed to increase diversity in professions or specialties
in which racial or gender groups have been significantly underrepresented, either because such
inclusiveness is deemed critical to the continU:ed strength of that profession,· or because inclusion
will lead to greater attention for neglected ·communities and problems. Supporters of these
programs emphasize that these scholarships are necessary to attract women and minorities to
these areas. Examples include: NSF's Minority Graduate Fellowship Program designed to
. increase the number of minority. scientist and engineers and NIH's Minority Clinical Associate
. ·
·Physician Program designed to increase the number of minority physi-cians.
.
)
Options. The policy options include:
Option 1: Maintain current policy, which requires "exhaustion" of alternatives to
diversity-based use of race- or gender-specific scholarships.
·Option 2:. "Tweak" current policy to require added analysis of alternatives.
Option 3: Bar 'use of such scholarships except as · necessary to remedy past
discrimination;· otherwise, dilute exclusivity through broader eligibility.
Analysis. Education policies regarding admissions and scholarships are central to public concerns
about affirmative action. Some view race- or gender-specific scholarships as a form of "setaside" and thus reminiscent of quota-driven admissions policies (such as the dual-admissions
system struck down in Bakke). On the other hand, education and training are on the
"opportunity" end of the opportunity-to-results spectrum, and the current policy requires that any
race- or gender-specific pro'grams be narrowly tailored.
Option 3, which focuses on race-specific scholarships, was proposed by the Bush
Administration in 1991. This approach would send a clear message thatno applicant should be
excluded from a scholarship program on the basis of race or gender. Arguably, this would be
a curious rule, as it would leave intact numerous scholarships limited by religion, surname,
geography, and other, more arbitrary criteria. ·
Option 2 would clarify the seriousness of the requirement that an institution wishing to use
. such scholarships (outside of a remedial context) first analyze race- or gender-neutral approaches
. and conclude they would not be effective substitutes for more exclusive scholarships. The policy
guidance would be amended to require the institution to be prepared, if challenged, to present the
evidence and analysis tipon which its conclusion was based.· (This is the formulation used
elsewhere· in the guidelines, and by the courts, in explaining that when an institution may invoke
its history of discrimination (lS a remedial justification for race-specifiC scholarships.) On the one
hand, this option amounts to a declaration that race or gender should only be used as a condition
of eligibility when truly necessary. On the other hand, it
ractical effect might not
justify the anxiety it would likely generate among mino
' groups.
.
.
-
.
Q
6
1-
z
~
u
2
LIBRARY PHOTOCOPY
�Option 1 would maintain current policy. As noted in our discussions, race-. or genderspecific scholarships are small slices of a much larger pie -- much of which is administered on
the basis of need. As there are so many different avenues for financial aid, it is possible to argue
tha~ race-: or. gender-specific schoiarships do not meaningfully. limit ·the opportunity of any
student, or at least no more so than does a scholarship limited to offspring of the Knights of
·
Columbus or the Daughters of the American Revolution.
Indeed, current antidiscrimination enforcement guidance from the Department of Education,
promulgated during the Reagan Administration pursuant to Title IX, makes the test for gender.
.
specific scholarships whether the· financial aid practices of the institution, taken as a whole,
provide equal opportunity. As a ·matter of constitutional doctrine, race-based distinctions are
subject to s~ricter scrutiny than gender-based distmctions. · But this distinction seems untenable
as a.general matter of policy or politics. Hence, any toughening of prohibitions on race-based
aid should probably be similarly applied to gender-based aid.·
Finally, we should note the relationship between these options .and the familiar hypothetical:
a college admissions or scholarship policy that favors the African-American son of a successful
neurosurgeon, but not the son of a steelworker. Some argue tliat _affirmative action should. be
only for economically disadvantaged minorities, because affluent minorities are evidently not
suffering from a lack of opportunity, relative to many less economieally advantaged whites. The
rebuttal has three central points. First, there should be affirmative efforts to provide opportUnity
for economically disadvantaged individuals, both white and non-white; such efforts need not
come at the expense of affirmative ·action when it is legitimately directed at minorities on the
basis of concerns apart from economic disadvantage. Second, apart from economic di~advantage,
but still within the realm of "private fairness," it is often observed that comparatively advantaged.
minorities nevertheless continue to face social and other obstacles solely because of prejudice and
discrimination, and that these disadvantages, while different from badges of poverty, are a fair
basis for attention. Third, in the realm of institutional and societal benefit, a college might
properly conclude that the institution will benefit from inclusion of the neurosurgeon's son -even though affluent -- just as they might conclude that the diversity benefit of including a
bassoonist is weighty not withstanding the musiCian's affluence. In America today, it remains
likely that the neurosurgeon's experiences, perspective, and aspirations will reflect some aspect
of the distinctive reality facing blacks. And the college may choose to value that.
.
lL .
.
Employment: · Race or Gender in Layoff Decisions
Background. The central issue in this area concerns race or gender as a consideration in layoffs.
Under current law, two propositions are clear. First, layoffs cannot be used as a means to
implement an affirmative action policy by "making room" for new, diverse employees. Second,
race or gender cannot trump a bona fide seniority system.
3
LIBRARY PHOTOCOPY
�--------~-----------------------·---------------------~-----.
Thus, reportedly, many large firms expressly consider diversity in their layoff policies, and with
significant results: illinois Bell cut recently 930 management jobs, but the proportion Of minority
managers rose from 25 to 27%; Baxter cut 20% of its 2000 employees, but the proportion Of
minority managers increased from 10 to 12%.
, The narrow question of "tie-breakers" is thus most likely to arise in the context of a seniority
system where layoff decisions. are more. structured.. · In the Piscataway case, the Justice
Department has argued thaf Title VII does not prohibit the School Boaid from using race as a
tie-breaking consideration in pursuit of a legitimate interest in diversity. In the context of the
federal civil service, the OPM regulations are silent: the Department of Justice (Office of Legal
Counsel) believes the statutes and caselaw would, as in Piscataway, permit narrowly tailored
consideration of race or gender.
,
·
Options. The policy options include:
Option 1: As a policy matter; when not inconsistent with a bona fide seniority system,
· diversity may be considered in layoffs, but only in limited circumstances.
Option 2: As a policy matter, race or gender ·should not be considered in layoff
decisions.
Analysis. Concerns about employment are two-fold. In certain sectors~ there is a sense that
some job opportunities are limited to· "diversity candidates" and thus that white males are
excluded. Second, there are concerns that in a continuing era of corporate reengineering, women
and minorities are, due to af:f:irrilative·action, at less risk of being laid off. (As you have noted,
affirmative action is sometimes used cynically to justify decisions niade for other reasons,
legitimate and otherwise.)
Option· 2 would issue a sharp and clear statement and would provide some comfort to whites,
males, and their dependents, in a time of insecurity. (There would be a corresponding· ·
reinforcement of minority and women concerns about their marginality.) In the public
employment context, this is likely to have little policy impact because. of seniority rules, and thus
will affect only tie-breaker-type situations. However, this option would send a loud signal to
the private sector and could have art effect on private practices.
Option 1 is closer to the status quo, but does not lend itself to a simple rule. Instead, this
approach would call for the common-sense balancing of the institution's general diversity interest
and the burden on identifiable.majority employees. Consideration of race or gender would be
permissible only: when necessary for. the institution's operation; when a manifest racial or gender
imbalance exists; and when less race-intrusive considerations are not effective. If you select this
option, announcing a clarification of federal layoff policy could underscore the. very high hurdle
you would impose, but might also serVe to focus resentments around the entire issue. In any
.
e law and policy
case, however, we are likely to face continuing questions re
«.<(-."(;.
tv.,.4
. ·
surrounding the Piscataway situation.
\1\
<'
~· \~~
. .
;.)
t)
.
'(
4.
·.
PHOTOCOPY
�k
Procurement: Preferences & Set-asides
Background. Federal law establishes several goals for the distribution of federal procurement
opportunities: 20% for small businesses; 5% for small disadvantaged businesses (SDBs --.
virtually all of which are minority...:...owned 1); and 5% for women-owned businesses. There is
aweb of programs designed to reach these goals; some are government-wide, others are agency..:...
specific. These efforts use several tools:
·
• Sole source procurements: Under SBA's § 8(a) prograin, small disadvantaged businesses
·
(SDBs) can secure smaller sole-source contracts (usually less than $3 million).
• .Sheltered. competition: Under DOD's "rule of two," a contract is set aside for SPBs if the.
officer believes two or more SDBs are likely to make competitive bids on the contract. (If
this set-aside is not triggered, there is a similar "rule of two" for all small businesses. Failing
this, there is open competition.)
• Bid .preferences: In open competitions, DOD awards a 10% bid price preference to SDBs;
.
(
.
.
last year's procurement reforms authorized government-wide use of this preference. The RTC
program uses a 10% "bonus" preference on contract price and a 1.5% point bonus on
"technical merit," provided th~ SDB is within the qualified range; the preferences are also
provided to joint ventures where the SDB has 40% or more of the transaction.
.
• Subcontracting incentives: DOT .provides an incentive payment to prime contractors who·
(voluntarily) subcontract with SDBs. (The Adarand issue.)
These· efforts have been successful in expanding procurement opportunities for women- and
minority-owned firms. · Between 1982 and 1991, while the dollar volume of all contracts
increased by 24%, contra:cts awarded to women-owned firms tripled and contracts awarded to
minority~owned firms doubled. Of late, these increases have been accompanied by actual
decreases for non-disadvantaged small firms. For example, while DOD's contracting with SDB's
more than·- doubled, its contracting with other small businesses fell by nearly 20%.
Notwitl,lstanding these gains, 97 percerit of contracting opportunities continue to b~ awarded to
non-SDBs ..
Some aspects of these efforts have been problematic. Rates of successful graduation from the
8(a) program remain low and the possibility of abusive practices remains, although recent
statutory and administrative efforts promise· some improvements. Outside of the limited 8(a)
program, however, there are no graduation requirements apart from what happens naturally if a
business is no longer "small" or an entrepreneur accumulates substantial wealth. In addition,
these programs have in some instances had a disparate impact on particular regions and industries
--such as smaller construction projects and certain transportation sub-industries. Finally, while
~~SIDEtv,_t:
q
~(
1
~
In the Department of Transportation's program only, the SDB definiti Cfucludes women.
~ \\\t
5
WJC LIBRARY PHOTOCOPY
�the 8(a) program permits nonminority firms to participate upon a showing that a finn's owners
are "socially and economically disadvantaged," in practice only about 1.6% of all 8(a) firms are
white-owned (and those mostly disabled), because the statute links "social disadvantage" to
membership in a group subject to discrimination.
Options. The policy options are:.
· Option 1: Eliminate misuses; expand pre-bid assistance. In particular: establish tighter
asset-related eligibility rules to prevent the "disadvantaged . millionaire"
phenomenon; limit the concentration of set-asides in a single region or industry;
a.D.d set standards. (by business sector· and by region) to determine when
preferences are no longer necessary. With regard to pre-bid assistance: invest
in new, vigorous outreach, technical assistance~ and surety bonding programs to
help level the contracting playing field; continue efforts to ... mainstream" minority
and women-owned businesses in SBA'S programs.
Option 2: Broaden eligibility; but retain race- and gender-based preferences;.
emp~asize the transitional character of program. In addition to the measures
in option 1, take the following steps:
-
Social QL Economic Disadvantage: Eliminate the requirement that owners be
"socially disadvantaged," thus opening up eligibility to white owners who
demonstrate "economic disadvantage." Maintain a less stringent economic
disadvantage test for minorities and (for the first time outside von· for women;
this separate standard would preserve some differential benefit for minorities and·
women, but without excluding disadvantaged whites from the program altog~ther.
To minimize any harm to current participants, inciease the goal for total· SDB
procurement from 5% to 10%.
· -
-
Strict transition requirements: Require graduation from the program for all SDBs
after, say, four years or four contract awards. This limits the moral cost of
maintaining preferential treatment for women and minorities.
Option 3: Convert to . race-neutral programs. Phase out race- and gender-based
eligibility, relying instead on race- and gender-neutral criteria of economic
disadvantage only.
Analysis. While procurement policies do not have wide visibility, they are arguably more
problematic than either education or employment policies for two reasons. First, the policies rely
heavily on racially exclusive set-asides: the practical effect of a set-aside is to take a contract .
and hang out a shingle saying "whites need not apply." Second, some view procurement setasides as more problematic than, say, minority-specific scholarships, believin
at providing
profitable business opportunities seems more directed toward equal result
IN
equal
q,«!'-'<~(
opportunity. These observers emphasize that "education is different."
<"
:
~ \\~
.)
WJC
"
/
6
~OTOCOPY
�At the same time, preferences may be more necessary in procurement' for several reasons.
First, anti-discrimination laws are more difficult to enforce in this area, especially ~ the
subcontracting realm. Second, "old-boy" networks a:re arguably stronger in this area, so that
informal exclusionary practices beyond the reach of law enforcement can be potent and persistent.'
And finally, procurement decisions often turn on a single factor-- price·-- and thus the multi.
factor mechanisms used in education and employment are less available in this area.
Option 3. would issue a clear statement that federal contracts should not be awarded on the
basis of race or gender. Current preference programs would be converted to focus on economic
disadvantage (albeit with a tighter asset test than current policy). This option represents. a
judgment that whatever the group-based discrimination or disadvantages faced by minority or
women entrepreneurs, no specia~ policy measures are appropriate beyond ·"pool-development
·strategies ... such as aggressive outreach and teclniical assistance.
As noted above, one can support race-specific scholarships but reject ~ace-specific contracting
.set-asides by distinguishing procurement as "more related to results than to opportunity." This
approach is far more restrictive than Supreme Court precedents·, which permit set-asides based
·on legislative findings of discrimination or lingering effects. 2
Option 2 would retain a minority- and gender-specific preference program, but reform it in
three critical respects. First, it would ameliorate several of the most problematic aspects of the
current programs. Tightening the asset test emphasizes that the goal is to create opportunity, not
endow millionaires. Limiting the concentration of preferences reduces the unfairness to white .
bidders in a particular region or business sector. Capping the number of contracts awarded
through shelteredcompetition ensures that opportunities are spread over more SDBs.
· Second, the program would emphasize creating opportunity for entrepreneurship, rather than
ensuring entrepreneurial success. Thus, in addition to pool-development measures, this approach
would require prompt graduation, emphasizing that preferences help "break the ice," but that
entrepreneurs should quickly be ready to compete with small businesses generally. Limiting the·
"bites·atthe apple" serves to emphasize that the program is an entryway, not an entitlement. It
also underscores that benefits from the program should not be unduly concentrated.
Third, the racial exclusivity of current preferences would be reduced by opening eligibility to.
.
non-minority firms based on economic disadvantage. Operationally, this is likely to have only
a modest effect on minority contracting. Prior to the codification of its minority entrepreneurship
focus in 1978, the 8(a) program used this "minority QL need" approach; at that time, only about
4% of all 8(a) firms were white-owned, compared with 1.6% today. Increasing the SDB goal
to 10% should help address concerns about diluting benefits to minority-owned firms.
c;\OEN~
The Court has required a somewhat more rigorous demonstration by~t ~no local ge1
ents than
by the Congress. TheAdarand ruling, expected before July, presents an opportunit :gr the Court to a~ ce more
0)
restrictive principles.
2
i5
r-
tt \Q $!
~ \~
'\
\
~
7
..
WJC LIBRARY PHOTOCOPY
�Option 1 would maintain the basic structure of the program -- including its use of race. This
option would emphasize eliminating misuses and expanding efforts to develop the pool and level
the playing fi,eld.
Distressed Areas: In addition to these policy options, we have begun .to develop a
complementary option: procurement preferences that focus less directly on minority capitalism
and more on job-creation for disadvantaged persons and distressed communities. Some of these
alternatives would be place-based and others employee-based; we are currently examining issues
of administrability. ·Example of such initiatives include:
.•
•
•
•
Provide set-asides or other preferences for firms whose workforce (on the contract) would .
be drawn more than X% from chronically .distressed areas, using measures based on
Census and BLS data. (There are two especially well..:.regarded alternative indices of
_distress in the social science literature. ) Or
Provide preferences to firms whose workforce would be ·drawn more than X%· from
targeted population groups, such as recent AFDC or food stamp recipients. Or
Provide preferences as above, but based also on the employment of underrepresented
·groups. Or
Employ any of these approaches, but seale the magnitu<(le or duration of the preference
according to the firm's workforce "score."
Bearing in mind that such an initiative speaks to somewhat separable policy and political
objectives, you may decide that such an empowerment contracting scheme should be a (i)
substitute fo~, (ii) complement to, or(iii) condition of the reformed entrepreneurship preferences.
FCC Auctions:
Your decision on procurement set-asides will also govern the
Administration's position regarding the FCC's auction of "personal communication systems"
(PCS) licenses. Phases of the PCS auction have been stayed pending resolution of a
constitutional challenge to bid preferences afforded minority- and women-owned firms by
Commission regulations. Because PCS licenses are for cellular and other wireless communication
rather than for broadcasting, a programming-diversity rationale will not justify group-based
preferences. Instead, the motivation is to create inclusive entrepreneurial opportunity, where there
otherwise would be none; in a critical emerging industry. Preferences in the PCS auction should
be· handled like procurement preferences.
II. PUTTING THE PIECES TOGETHER:·
BROADER PERSPECTIVES
Your policy choices in this area may be most easily defended if they reflect a coherent theory
or approach; This Part outlines three such approaches, and describes the p ·
· s thaf seem
most easily justified within that approach. (See Exhibit 1.) Each is c
~nt wi'""""'"'""~
inclinations you expressed in our vadous "vision" discussions, inclu iSg:
~ .\·~\9_
\.)
.\)
\
8
�• Emphasize antidiscrimination and opportunity, rather than guaranteeing results.
• . Stress the remedial justification, but also embrace the goal of inclusion.
•
Respect the interests of bystanders, by crafting policies carefully and narrowly.
.
.
-
·~
The "Calibrated" Approach
.
'
..
This approach emphasizes the difference between equal opportunity and equal results in two
dimensions. In terms of the policy tools one uses, outreach and training are less result-driven
and thus less problematic than set-asides or quotas. Similarly, in terms of the context, a specific
affirmative action tool is less problematic in education (which expands opportunity) than similar
·efforts in procurement (which more directly affects the distribution of wealth).
This approach supports a broader range of affirmative action policies in education than ln
procurement, as illustrated by the diagonal orientation of the "border area" in Attachment 1.
Thus, certain kinds of set-asides are acceptable for scholarships, but should be eliminated or
sharply focused in procurement. With regard to the policy choices outlined above, this approach
·. would support:
·
Education:
Employment:
Procurement:
lL
Option 1 -- Maintain current policy.
.
Option 1 -- Permit race or gender to be considered in layoff decisions.
Option 2 or 3 -- Reform and sharply narrow procurement preferences, or·
phase them out.
The "Least Intrusive Alternative" Approach
A second approach expresses more overt solicitude for bystanders by stressing that affirmative
action must be narrowly tailored to minimize exclusivity and the use of race-.or gender-based
decisioiunaking. ·. Thus, result-driven quotas are always inappropriate (except in rare courtordered remedies), and set-asides may only be used (i) when they are either broadly remedial
or (ii) when less intrusive alternatives are not effective. In essence, this approach would apply
the Title VI scholarship policy to all three sectors. .
Of course, "effectiveness" will be a matter of degree, and there is an implied balancing of the
benefits of inclusion with the costs of exclusion. Plior discrimination is relevant, as is the
opportunity..:.results distinction. So, one might weigh those costs and benefits .somewhat
differently in different contexts: it matters if an institution or industry has a history of
discrimination, in which case the narrowness need not be too scientific; and it matters if the
context is procurement, where the distribution of largesse ought to be narrowly tailored indeed.
�-----~~---~-~-
illustrated in Attachment 2):
Education: ·
~Employment:
Procurement:
C.
Option 1 or 2 -~ Maintain or tighten current policy.
Indeterminate -- Either option on consideration of race/gender in layoffs.
Option 2 -- Reform and sharply narrow preferences.
The "Anti;_Exclusion" Approach
A third· approach emphasizes the moral cost of maintaining programs ·that exclude persons on
the basis of race or gender-- even in the·.name of diversity. This approach entails opposition
to the rule-of-two SDB set-aside and to race- or gender-specific scholarships; these are
effectively indistinguishable from quotas. Instead, such programs··would have to be revamped
to rely on multifactor considerations in which race is but one factor, or on race- and genderneutral appr_oaches.
This approach leads one to support elimination of set-asides in all areas. In particular (as
illustrated in Attachment 3): ·
Education:
Employment:
. Procurement:
Option 3 -- Eliminate race- or gender-specific scholarships.
Option 2 -- Oppose consideration of race or gender in layoff decisions.
Option 2 or 3,-- Reform and sharply· narrow. procurement preferences, or
phase them out.
•
I
10
WJC LIBRARY PHOTOCOPY
�EXIDBIT 1
Provisional Decisions: Check one box (D) in each column. ·
(#) _ _:
indicates option number·
in the memorandum
Calibrated,
Opportunity 11
Approach
Edu·cation
Employment
Least Intrusive
Alternative 11
Approach
'
"Anti-Exclusion"
Approach
(2) Reform & sharply narrow
preferences; emphasize transition;
add disadvantage eligibility; or
O
11
11
Procurement
o (1) Maintain current policy
requiring exhaustion.
o (1) Permit limited
consideration of race/gender in
layoffs.
o (3) Convert to race-neutral
programs.
o (1) Maintain current policy
requiring exhaustion; or
o (1) Permit limited
consideration of race/gender in
layoffs; or
o (2) "Tweak" current policy,
requiring added analysis.
o (2) Reform & sharply narrow
preferences; emphasize transition;
add disadvantage eligibility. ·
o (2) Oppose consideration of
race/gender in layoffs ..
o (3) Eliminate race- and
gender-based aid by
expanding eligibility,
softening exclusion.
o (2) Oppose consideration of
o (2) Reform & ·sharply narrow
preferences; emphasize transition;
add disadvantage eligibility; or
race/gender in layoffs.
0
(3) Convort to '
\ pmgnms.
=E
ace.:..neut~ral
. .
c,UN OJit .<>
_
~
c..
.
("")
r
A. "Calibrated Opportunity" Approach: Emphasize creating opportunity, not guaranteeing results.
-~
~
o :J
:::0
)>
B. ''Least Intrusive Alternative" Approach: Emphasize narrow tailoring, and concern for bystanders.
:::0
-<
""tJ
::I:
0
-1
0
C. ''A.nti-Exclusion" Approach: Emphasis on avoiding bald set-asides that announce: "No whites need apply"
AdditionalDecision: FCC Broadcast' Licenses: o (1) Maintain status quo, or
D
1.
~\ttl
-<
CJ
(2) Establish a limited tax-certificate program.
11
~
~v
a" ""
~
("")
0
""tJ
(/)
�Attachment 1: A Calibrated Approach
0 p port unity -----------------------,:---•-----;_------------------------------------------------------ Res u Its
Opportunity
Enhancing
Assistance
Advantages &
Flexible Preferences
Set-asides
Multi factor
admissions policies:
e.g.; UC-Berkeley
Group:-based
programs:
e.g., Banneker;
NIH Minority
Fellowship;
San Bernardino's
Bridge Pro·gram
.....
......
·= ,
......
::I
~...,
0
Education
c.
c.
Compensatory ed;
Outreach & recruiting;
HBCUs
0
Employment
Outreach &. recruiting;
Apprenticeships;
Second look programs:
e~g., the military
Multifactor hiring:
e.g., judicial selection;
the Chicago police
dept.
Quotas
under this
approach,
shaded policies
w·ould be
appropriate only
as remedies for
· lingering-or
ongomg
discrimination
I
I
I
:e.
C....
C')
I
r,
-I
OJ
I
:::0 I
)>'
:::o'
-<
-c'
:I:~
o-::
~;;;
oa.~
nO::
0
-c
-<
Contracting
&
Procurement
Technical assistance;
Mentoring;
Bonding assistance
'.----·~
~
�Attachment 2: A Least Intrusive Alternative Approach
0 p port unity ---------------------------------------------------------------------------------------~ Res u Its
.
'
Opportunity
Enhancing
Assistance
Advantages &
Flexible Preferences
Compensatory ed;
Outreach & recruiting;
HBCUs
Multi factor
admissions policies:
e.g., UC-Berkeley
'
Set-asides
Quotas
.......
.....
c
:::1
.....
I..
0
c.
0.
0
Education
..
I
I
Employment
Outreach & recruiting;
· Apprenticeships; _
Second look programs:
e.g., the military
Multifactor hiring:
e.g., judicial selection;
· the Chicago police
. dept.
:e
c....
("')
r
OJ
:::0
)>
:::0"'
-<.!::
::
:z::a.l
00::
""C"'
-I
0
("')
0
""C
-<
I 0% bid preference;
Contracting
&
Procurement
Technical, assistance;
Mento ring;
Bonding assistance
"Subcontractor .
Compensation
program":
e.g., the Adarand case
under this
approach, shaded
policies would be
appropriate only
in court-ordered
· remedies
lined programs
·would be available
either to remedy
lingering or
ongoing
discrimination or
to increase
diversity, but only
if less intrusive
policies are not
effective ·
.
I
I
�Attachment 3: An Anti-Exclusion Approach
0 p p o rtu n i ty --------------------------------------------'"--------------------------------------------- Res u Its
Opportunity
Enhancing
Assistance
Advantages &
Flexible Preferences
Compensatory ed;
Outreach & recruiting;
HBCUs
Multifactor
admissions policies:
e.g., UC-Berkeley
Set-asides
Quotas
»
.......
·-'
c
:I
lo.
0
g: I
0'
Education
Employment
Outreach & recruiting; ,
Apprenticeships;
Second look programs:,
e.g., the mili~ary
Multifactor hiring:
e.g., judicial selection;
the Chicago police,
dept.
under this
approach,
shaded policies
would be
appropriate only
as court -ordered
ongomg
discrimination
::e
'-
(")
r
to
::::0
)>
::::0
-<
""0
:I:
0
--i
0
(")
0
""0
-<
.,
I
-
~
~
~
Contt·acting
&
Procurement
Technical assistance;
Mentoring;
Bonding assistance
10% bid preference;
"Subcontractor
Compensation
program"
e.g., the Adarand case
�.·
THE WHITE HOUSE
WASHINGTON
April 20, 1995
MEMORANDUM FOR THE PRESIDENT & THE VICE PRESIDENT
.
~
•5-:
~
From:
George Stephanopo6los, Christoplier Edley,._Jr. & Peter Yu
Re: ·
Affirmative Action: Policy Issues
This memorandum presents options regarding federal affirmative action policy. Part I outlines
options in four areas: education, employment, procurement, and broadcast licenses. Part II offers
three_ alternative, broader perspectives that may be useful in your deliberations.· A subsequent
memorandum will discuss the message, communications, and political dimensions of these policy
·
choices.
I. AFFIRMATIVE ACTION IN
EDUCATION, EMPWYMENT, AND PROCUREMENT
A.
/
Education: Race- or Gender-Specific Scholarships
Background. The central issue in the area of education concerns scholarships for which race or
gender is a condition of eligibility. This issue has two dimensions: (i) scholarships administered
· by universities receiving federal assistance and(ii) federal scholarship programs.
With regard to (i), the current Administration policy for enforcement of Title VI, announced
by Secretary Riley in February 1994; permits the use. of race as a condition of eligibility for
financial aid in order (a)to remedy past discrimination or (b) to promote diversity, provided the
measure is narrowly tailored and does not unduly restrict access to financial aid for nonminority
students. A measure is "narrowly tailored" if (1) race-neutral means would have been
ineffective; (2) a less extensive or intrusive use of race would have been ineffective; (3) the ·
measure is of limited extent and duration, and is applied in a flexible manner; (4) the institution
periodically reviews the continuing need for the measure; and (5) the effect on nonbeneficiaries
is sufficiently small and diffuse so as not to unduly burden their opportunity to receive financial
aid. These restrictions apply to university-administered aid, whether publicly or privately funded.
Approximately 3.3% of all undergraduate financial aid, 4.3% of all graduate financial aid, and
·
12% of all professional-school financial aid is administered through such scholarships.
Current policy with regard to gender-specific scholarships provides that institutions may not
discriminate on the basis of gender, but may administer. privately-:-funded gender-specific
WJC LIBRARY PHOTOCOPY
�The federal government also directly administers a number of race- or gender-specific
scholarship programs. All of these are designed to increase diversity in professions or specialties .
in which racial or gender groups have been significantly underrepresented, either because such
inclusiveness is deemed critical to the continued strength of that profession, or because inclusion
will lead to greater attention for neglected communities and problems. Supporters of these
programs emphasiie that these. scholarships are necessary to attract women and minorities to
these areas. Examples include: NSFs Minority Graduate _Fellowship Program designed to
increase the number of :rpinority scientist and engineers and Nlli's Minority Clinical Associate
Physician Program designed to increase the number of minority physicians.
Options. The policy options i?clude:
Option 1: Maintain current policy, which requires "exhaustion" of alternatives to
diversity ..:..Chased use of race- or gender-specific scholarships ..
Option 2: "Tweak" current policy to require added analysis of alternatives.
Option 3: Bar iise of such scholarships except as necessary to remedy past
discrimination; otherwise, dilute exclusivity ·through broader eligibility.
·
·,
Analysis. Education policies regarding admissions and scholarships are central to public concerns ·
about affirmative action. Some view ra~- or gender-specific scholarships as a form of "setaside" and thus reminiscent of quota-driven admissions policies (such as the dual-admissions
system struck down in Bakke). On the other hand, .education and training are on the
"opportunity" end of the opportunity-to-results spectrum, and the current policy requires that any ·
race- or gender-specific programs be narrowly tailored.
·
Option 3, which focuses on race-speCific scholarships, was proposed by the Bush
Administration in 1991. This approach would send a clear message that no applicant should be
·excluded from a scholarship program on the basis of race or gender. Arguably, this would be
a curious rule, as it would leave intact· numerous scholarships limited by religion, surname,
geography, and other, more arbitrary criteria.
Option 2 would clarify the seriousness of the requirement that an institution wishing to use
such scholarships (outside of a reniedial.context) first analyze race- or gender-neutral approaches
and conclude they would not be effective substitutes for more exclusive scholarships. The policy
guidance would be amended to require the institution to be prepared, if challenged, to present the
evidence and analysis upon which its conclusion was based. (This is the formulation used
elsewhere in the guidelines, all~ by the courts, in explaining that when an institution may invoke
its history of discrimination as a remedial justification for race-specifiC scholap;hips.) On the one
hand, this option amounts to a declaration that race or gender should only be used as a condition
of eligibility when truly necessary. On the other band, its minimal practical effect might not
justify the anxiety it would likely generate among minority' and women's gro~ps.
2
WJC LIBRARY PHOTOCOPY
�R:-<(;
q
f \~<}
?0
Option 1 would maintain current policy. As noted in our discussions, race- o enderspecific scholarships are small slices ofa much larger pie-- much of which is administe · on
the basis of need. As there are so many different avenues for financial aid, it is possible to argue
that· race:.. or gender-specific scholarships do not meaningfully limit the opportunity of any
student, or at least no more so than does a scholarship limited to offspring of the Knights of
Columbus or the Daughters of the American Revolution.
Indeed, current antidiscrimination enforcement guidance from the Department of Education,
· promulgated during the Reagan Administration pursuant to Title IX, makes the test for genderspecific scholarships whether the financial aid practices of the institution, taken as a whole,
provide equal opportunity~ As a matter of constitutional doctrine, race-based distinctions. are
subject to stricter scrutiny than gender-based distinctions. But this distinction seeins untenable
as a general matter of policy or politics. Hence, any toughening ofprohibitions on race-based
aid should probably be similar:ly applied to gender-based aid. ·
Finally, we should note the relationship between these options and the familiar hypothetical:
a college admissions or scholarship policy that favors the African-Anierican son of a successful
neurosurgeon, but not the son of a steelworker. Some -argue that affirmative action should ·be
only for economically disadvantaged minorities, because affluent minorities are evidently not
·suffering from a lack of opportunity, relative to many less economically advantaged whites. The
· rebuttal has three central points. First, there should be affirmative efforts to provide opportunity
for economically disadvantaged individuals, both white and non-white; such efforts need not
come at the expense of affirmative action when it is legitimately directed at minorities on the
basis of concerns apart from economic disadvantage. Second, apart from economic disadvantage,
but still within the realm of "private fairness," it is often observed that comparatively advantaged
minorities nevertheless cOntinue to face social and other obstacles solely because of prejudice and
discrimination, and that these disadvantages, ~hile. different from badges of poverty, are a fair
basis for attention. Third, in the realm of institutional and societal benefit, a college might·
properly conclude that the institution will benefit from inclusion of the neurosurgeon's son .:.._
even though affluent -- just as they might conclude that the diversity benefit of including a
bassoonist .is weighty not withstanding the musician's affluence. In America today, it remains
likely that the neurosurgeon's experiences, perspective, and aspirations will reflect some aspect.
of the distinctive reality facing blacks. And the college may choose to value that.
B..
Employment: Race or Gender in Layoff Decisions
Background. The central issue in this area concerns race or gender as a consideration in layoffs.
Under current law, two propositions are clear. First, layoffs cannot be used as a means to
implement an affirmative action policy by "making room" for new, diverse employees. Second,
·
nice or gender cannot trump a bona fide seniority system.
The reach of this second principle is limited.· While seniority systems are common in the
public sector, the decline of unionism has reduced the private sector's reliance on such systems.
3
WJC LIBRARY PHOTOCOPY
�<.
Thus, reportedly, many large finns expressly consider diversity in their layoff policies,
significant results: Ulinois Bell cut recently 930 management jobs, but the proportion of mino~·""'-managers rose from 25 to 27%; BaXter cut 20% of its 2000 employees, but the proportion of
minority managers increased from 10 to 12%.
The narrow question of "tie-breakers" is thus most likely to arise in the context ofa seniority
system where layoff decisions are more structured. In the Piscataway case, the Justice
Department has. argued that Title VII does not prohibit the School Board from using race as a
tie....:.breaking consideration in purSuit of a legitimate interest in diversity. In the context of the
federal civil service, the OPM, regulations are silent: the Department of Justice (Office of Legal
Counsel) believes the statutes and caselaw would, as in Piscr,ztaway, permit narrowly tailored
· consideration of race or gender.
·
Options. The policy options include:
Option 1: .As a policy matter, when not inconsistent with a bona fide seniority system,
diversity may be considered in layoffs, but only in limited circumstances.
Option 2: As a policy matter, race or ge_nder should not' be considered in layoff
decisions.
· Analysis. Concerns about employment are two-fold. In certain· sectors, there is a sense that
some job opportunities are limited. to "diversity candidates" and thus that white males are
excluded~ Second, there are concerns that in a continuing era of corporate reengineering, women
and minorities are, due to affirmative action, at less risk of being laid off. (As you have noted, .
affirmative action is sometimes used cynically to justify decisions made for other re.asons,
legitimate and otherwise.)
·
Option 2 would issue a sharp and clear statement and would provide some comfort to whites,
males, and their dependents, in a time of insecurity. (There would be a corresponding·
reinforcement of minority and women concerns about their marginality.) ·In the public
empioyment context, this is likely to have little policy impact because of seniority rules, and thus
will affect only tie-breaker-type situations. However, this option would send a loud signal to
· the private sector and could have an effect on private practices.
Option 1 is closer to the status quo, but does not lend itself to a simple rule. Instead, this
approach would call for the common-sense balancing of the institution's general diversity interest
and the burden on identifiable majority employees. Consideration of race or gender. would be
permissible only: when neces~ary for the institution's operation; when a manifest racial or gender
imbalance exists; and when less race-intrusive considerations are not effective. If you select this
option, announcing a clarification federal layoff policy could underscore the very high hurdle
you would impose, but might also serve to focus resentments around the entire issue. ·In any
case, however, we are likely to face continuing questions regarding the law and policy
surrounding the Piscataway situation.
ot
4
WJC LIBRARY PHOTOCOPY
�-
~s\DENI"t.
Q..~
'AI(
.
Procurement: Preferences & Set-asides
-
·
.
.
·
.
.
-
<-
~
/
. . ..>.
·
..,
0
\
~ n__
~
Background. Federal law establishes several goals for the distribution of federal p b'curement
opportunities: 20% for small businesses; 5% for small disadvantaged businesses (
s -virtually all of which are minority-owned1); and 5% for women-owned businesses. There IS
a web of programs designed to reach these goals; some are government-wide, others are agency;_
-. specific. These efforts use several tools:
~
~
)>
::0
""
·
• Sole source procurements: Under SBA's § 8(a) program, small disadvantaged businesses
(SDBs) ean secure smaller sole-source contracts (usually less than $3 million).
· •. Sheltered competition: Under DOD's "rule of two," a contract is set aside for SDBs if the
officer believes two or more SDBs are likely to make competitive bids on the contract. (If
this set-aside is not triggered, there is a siniilar "rule of two" for all small businesses. Failing
.
.
this, there is open competition.)
. • Bid preferences: In open competitions, DOD awards a 10% bid price preference to SDBs;
· last year's procurement reforms authorized government-wide use of this prefe.rence. The RTC
program uses a 10% "bonus" preference on contract price and a 15% point bonus on
"technical nierit," provided the SDB is within the qualified range; the preferences are also
provided to joint ventures where the SDB has 40% or more of the transaction.
• Subcontracting incentives: DOT provides an incentive payment to prime contractors who
(voluntarily) subcontract with SDBs. (The A.darand issue.)
These efforts have been successful in expanding procurement opportunities for women- and
minority-owned firms. Between 1982 and 1991, while the dollar volume of all contracts
'increased by 24%, contracts awarded to women-owned firms tripled and contracts awarded to
mmority-owned firms doubled. Of late, these increases have been accompanied by actual
decreases for non-disadvantaged small firms. For example, while DOD's contracting with SDB's
more than doubled, . its contracting with other small businesses fell by nearly 20%.
l'{otwithstanding these gains, 97 percent of contracting opportunities continue to be awarded to
non-SDBs.
·
,., · ·
-
.
Some aspeCts of these efforts have been problematic. Rates of successful graduation from the
8(a) program remain low and the possibility of abusive practices n~mains, although recent
s!atutory and administrative efforts promise some improvements. Outside of the limited 8(a)
program, however, there are no graduation requirements apart from what happens naturally if a
business is no longer "small" or an entrepreneur accumulates substantial wealth. In addition,
these programs have in some instances had a disparate impact on particular regions and industries
--such as smaller construction projects and certain transportation sub-:-industries. Finally, while
1
In the Department of Transportation's program only, the SDB definition includes women.
5
WJC LIBRARY PHOTOCOPY
�· £-S\OENr...:
. '-<1(
~:v
~~ \~g-- l
.
. . firm
..
.·h .
h
the 8() program permits nonmmonty
a
s to partiCipate upon a s owmg t at a
s owners
· are "socially and economically disadvantaged," inpractice only about 1.6% of all 8
white-owned (and those mostly disabled), because tl_le statute links "social disadv
members~ip in a group subject to discrimination.
::U
"'
· Options. The policy options are:
Option 1: Eliminate misuses; expand pre-bid assistance. In particular: ·establish tighter
asset-related eligibility·. rules to prevent the "disadvantaged millionaire"
phenomenon; limit the concentration of set-asides in a single region or industry;
and set standards (by business sector and· by region) to determine when
preferences are :no longer· necessary. With regard to pre-bid assistance: invest
in new, vigorous outreach, technical assistance, and surety bonding programs to
help level the contracting playing field; continue efforts to "mainstream" minority
.
and women-owned businesses in SBA's programs. ·
Option 2: Broaden eligibility, but · retain race- and gender-based preferences;
emphasize the transitional character of program. I:iJ. addition to the measures
in option 1, take the following steps:
-
Social QL Economic Disadvantage: · Eliminate the requirement that owners be
"sodally disadvantaged," thus opening up eligibility to white owners who
demonstrate "economic disadvantage." Maintain a less stringent economic
- disadvantage test for minorities and (for the first time outside DOT) for women;
this separate standard would preserve some differential benefit for minorities and
women, but without excluding disadvantaged whites from the program altogether.
To minimize any harm to current participants, increase the goal for total SDB
procurement from 5% to 10%.
-. Strict transition requirements: Require graduation from the program for all SDBs
after, say, four years or four contract awards~ This limits the moral cost of
maintaining preferential treatment for women and minorities.
Option 3: Convert to race-neutral programs. Phase out race- and gender-based
eligibility, relying in~tead on race- and gender-neutral criteria of economic
disadvantage only.
··Analysis. While procurement policies do not have wide visibility, they are arguably more
problematic than either.education or employment policies for two reasons. First, the policies rely
heavily on racially exclusive set-asides: the practical effect of a set-aside is to take a contract
and hang out a shingle saying "whites need not apply." Second, some view procurement set:_
asides as more problematic than, say, minority-specific scholarShips, believing that providing
profitable business opportunities seems more directed toward equal results than towards equal
opportunity. These observers emphasize that "education is different."
6
WJC LIBRARY PHOTOCOPY
�«:-s'o
'ttq-
t:J.~
. '( <: .
6 '\~~ ~
r.
-g
-z. .
.
At the same time, preferences may be more necessary in procurement for seve ~ easons.
First, !llti-discrimination laws ·are more difficult to enforce in this area, especia · in the
subcontracting realm. Second, "old:_boy" networks are arguably stronger in this area, s(l"'<l.n:u-informal exclusionary practices beyond the reach of l;:tw enforcement can be potent and persistent.
And finally, procurement decisions often tum on a single factor__:_ price --.and thus the multifactor mechanisms used in education and employment are less available in this area. ·
:::0
'
Option 3 would issue a clear statement that federal contracts should not be awarded on the
basis of race or gender. Current preference programs would be converted to focus on·economic .
. . disadvaptage (albeit with a tighter asset test than current policy). This option represents. a
judgment that whatever the group-:-based discrimination or disadvantages faced by minority or
women entrepreneurs, no special policy measures are appropriate beyond "pool-development .
strategies" such as aggressive outreach and technical assistance.
·
As noted above, one can support race-specific scholarships but reject race-specific contracting
set-asides by distinguishing procurement as "more related to results than to opportunity." This
. approach is far more restrictive than Supreme .Court precedents, which permit set-asides based.
·. on legislative findings of discrimination or lingering effects?
Option 2 would retain a minority- and gender-specific preferenCe program, but reform it in
three critical respects. First, it would ameliorate several of the most problematic aspects of the·
CJJrrent programs. Tightening the asset test emphasizes that the goal is tocreate opportunity, not
endow millionaires. Limiting the concentration of preferences reduces the unfairness to white
bidders in a particular region or business sector~ Capping the number of contracts awarded
. through sheltered competition ensures that opportunities are spread over more SDBs.
Second, the program would emphasize creating opportunity for entrepreneurship, rather than
· ·ensuring entrepreneurial success . Thus, in addition to pool-development measures, this approach
would require prompt graduation, emphasizing that preferences help "break the ice," but that
entrepreneurs should quickly be ready to compete with small businesses ge11erally. Limiting the
"bites at the apple" serves to emphasize that the program is an entryway, not an entitlement. It
also underscores that benefits rrom the program should not be unduly concentrated.
Third, the racial exclusivity of current preferences would be reduced by opening eligibility to
non-minority firms based on economic disadvantage. Operationally, this is likely to have only
a modest effect on minority contracting. Prior to the codification of its minority entrepreneurship
focus in 1978, the 8(a) program used this "minority QL need" approach; at thattime, only about
4% of all 8(a) firms were white-owned, compared with 1.6% today. Increasing the SDB goal
to 10% should help address concerns about diluting benefits to minority-owned firms.
2
The Court has required a somewhat more rigorous demonstration by state and local governments than
by the Congress. TheAdarand ruling, expected before July, presents an opportunity for the Court to announce more
restrictive principles.
-
7
WJC LIBRARY PHOTOCOPY
�<
0
1-
?ption 1 would m~inta~ t~e ~asic ~tructure of the pr~gram -- including its use o B,ce.. This ·
option yvould emphasize ehmmatmg misuses and expandmg efforts to develop the poo iihd level
the playing field.
.
'
· Distressed Areas: In addition to these policy options, we have begun to develop a
complementary option: .procure~ent preferences that focus less directly on ininority capitalism
and more on job-creation for disadvantaged persons and distressed communities. Some of these
alternatives would be place-based and others employee-based; we are currently examining issues
of administrability. Example of such initiatives include:
•
•
•
•
Provide set-asides or other preferences for firms whose workforce (on the c:ontract) would
be drawn more than X% from chronicaUy distressed areas, using measures based on
Census and BLS data.· (There are two especially well-regarded alternative indices of
distress iri the social science literature. ) Or
Provide preferences to· firms whose workforce would be drawn more than X% from
targeted population groups, such as recent AFDC or food stamp recipients. Or
Provide preferences as above, but based also on the employment of underrepresented
groups. Or
Employ any of these approaches, but scale the magnitude or duration of the preference
according to the firm's workforce "score;"
·
·
Bearing in mind that such an initiative speaks to somewhat separable policy and political
objectives, you may decide that such ·an empowerment contracting scheme should be a· (i)
substitute for, (ii) complement to, or (iii) condition of the reformed entrepreneurship preferences.
· FCC Auctions:
Your decision on· procurement set-asides will also govern -the
Administration's position regarding the FCC's auction of "personal communication systems"
(PCS) licenses. Phases of the · PCS auction have been stayed pending resolution of a
constitutional challenge to bid preferences afforded minority.,. and women-owned firms by
. Commission regulations. Because PCS licenses are for cellular and other wireless communication
rather than "for broadcasting, a programming-diversity rationale will not justify group-based
preferences. Instead~ the motivation is to create inclusive entrepreneurial opportunity, where there
otherwise would be none; in a critical emerging industry. Preferences in the PCS auction should·
be handled like procurement preferences.
ll. PUTIING THE PIECES TOGETHER:
BROADER PERSPECTIVES
Your policy choices in this area may be most easily defended if they reflect a coherent theory
or approach. This Part outlines three such approaches, and describes. the policy choices that seem
'most easily justified within that approach. (See Exhibit 1.) Each is consistent with some basic
inclinations you expressed in our various "vision" discussions, including:
8
WJC LIBRARY PHOTOCOPY
�<
.
.
.
.
.
0
~
• Emphasize antidiscrimination and opportunity, rather than gUaranteeing result-~
• · Stress the remedial justification, but also embrace the goal of inclusion.
0
•
Respect the interests of bystanders, by crafting policies carefully and narrowly.
A..
The "Calibrated" Approach
This approach emphasizes the difference between equal opportunity and equal results in two .
dimensions. In terms of the policy tools one uses, outreach and training are less result-driven
and thus less problematic than set-asides or quotas. Similarly, in terms of the context, a specific
affirmative action tool is less problematic in education (which expands opportunity) than similar
efforts in procurement (which more directly affects the distribution of wealth).
This approach supports a broader range of affirmative action policies in education than in procurement, as illustrated by the diagonal orientation of the "border area" in Attachment 1.
Thus, certain kinds of set-asides are acceptable for scholarships, but should be elinlmated or
sharply focused in procurement. With regard to the policy choices outlined above, this approach
would support:
·
Education:
Employment:
Procurement:
lL
Option 1 -- Maintain current policy.
Option 1 -- Permit race or gender to be considered in layoff decisions.
Option 2 or 3 -- Reform and. sharply narrow procurement preferences, or
phase them out.
The "Least Intrusive Alternative" Approach
A second approach expresses more overt solicitude for bystanders by stressing that affirmative
action must be narrowly tailored to minimize exclusivity and the use .of race- or gender-based
decisionmaking. Thus, result-driven quotas are always inappropriate (except in rare courtordered remedies), and set-asides may only be used (i) when they are either broadly r~medial
or (ii) when less intrusive alternatives are not effective. In essence, this approach would apply
the Title VI scholarship policy to all three sectors.·
Of course, "effectiveness" will be a matter of degree, and there is an implied balancing of the
benefits of inclusion with the costs of exclusion. Prior discrimination is relevant, as is the
· opportunity-results distinction. So, one might weiib those costs and benefits somewhat
differently in different contexts: it matters if an institution or industry has a history of
disCrimination, in. which case the narrowness need not be too scientific; and it matters if the
context is procurement, where the distribution of largesse ought to be narrowly tailored indeed.
This approach leads to support for limited use of race-specific programs. In particular (as
' 9
WJC LIBRARY PHOTOCOPY
�illustrated in Attachment 2):
Education:
Employment:
Procurement:
C
Option 1 or 2 -- Maintain or tighten current policy.
Indeterminate -- Either option on consideration of race/gender in layoffs.
Option 2-- Reform and sharply narrow preferences.
The "Anti-Exclusion" Approach
·. A third approach emphasizes the moral eost of maintaining programs that exclude persons on
the basis of race or gender-- even in tlie name of diversity. This approach entails opposition
to the rule...:of-two SDB set-aside and to race- or gender-specific· scholarships; these are
effectively indistinguishable from quotas. Instead, such programs would 'have to be revamped
to rely on multifactor considerations in which race is but one factor, or on race- and genderneutral approaches.
This approach leads one to support elimination of set-asides in all areas. In particular (as
illustrated in Attachment 3):
Education:·
Employment:
Procurement:·
Option 3 -- Eliminate race- or gender-specific scholarShips.
Option 2 -:-- Oppose consideration of race or gender in layoff decisions.
Option 2 or 3 -- Reform and sharply narrow procurement preferenCes, or
phase them out.
10
. WJC LIBRARY PHOTOCOPY
�EXHIBIT 1
..
Provisional Decisions: .Check one box (D ) in each cohimn
(#) --
"Calibrated,
Opportunity"
Approach
"Least Intrusive
Alternative 11
Approach
11
Anti-Exclusion"
Approach
Procurement
Employment
Education
indicates option number
in the memorandum
o (1) Maintain current policy .
·o (1) Permit limited
consideration of race/gender in
layoffs.
requiring exhaustion.
o (2) Reform & sharply narrow·
preferences; emphasize transition;
add disadvantage eligibility; or
o (3) Convert to race-neutral
programs.
o (1) Maintain current policy
requiring exhaustion; or
o (2) "Tweak" current policy,
requiring added analysis.
d
(3) Eliminate race- and
gender-based aid by
expanding eligibility,
softening exclusion.
o (1) Permit limited
consideration of race/gender in · o (2) Reform & sharply narrow
preferences; emphasize transition;
layoffs; or
add disadvantage .eligibility.
o (2) Opp<)se consideration of
race/gender in layoffs.
o (2) Oppose consideration of
race/gender in layoffs.
.
.
o (2) Reform & sharply narrow
preferences; emphasize transition;
' add disadvantage eligibility; or
o (3) Convert to race-neutra1
programs.
=E
c...
n
r
,_;.,
OJ
::0
)>
A. "Calibrated Opportunity" Approach: Emphasize creating opportunity, not guaranteeing results.
B. "Least Intrusive Alternative" Approach: Emphasize narrow tailoring, ·and concern for bystanders.
~
n
"'0
-<
~
~ -~-"'ry
C. ''Anti-Exclusion" Approach: Emphasis on avoiding bald set-asides that announce: "No whites need apply."
:I:
0
~
2
~·
"'0
0
-1
0
~ION~
~
·-._\).;::::}
::0
-<
~ ~~
.
. Additional Decision: FCC Broadcast Licenses:
D
(1) Maintain status quo, or
o (2) Establish a limited tax-certificate program .
11
�Attachment 1: A Calibrated Approach
0 p po rtu n ity -----------------------------:---------------------------------------------------------- Results
Opportunity
Enhancing
Assistance
Advantages &
Flexible Preferences
Set-asides
Multi factor
admissions policies:
e.g., UC-Berkeley
Group-based
programs:
e. g., Banneker;
NIH Minority
Fellowship; .
San 'Bernardino's
Bridge Pro grain
.0
....
t:: I Education
0
0.
Q,
Compensatory ed;
Outreach & recruiting;
HBCUs
0
,I
I
Employment
::E
I
C')
Outreach & recruiting;
Apprenticeships;
Second look programs:
e.g., the military
I
c._
I
r
co
Contracting
::::0
)>
&
:::0
-<
""'0
:I:
I
I
0
......
"'
:::
0
ProcUJ·ement
Technical assistance;
Mento ring;
Bonding assistance
0::
""'-!
C')
"'
~
0
""C
-<
·:.
Multifactor hiring:
e.g., judicial selection;
the Chicago ·police
dept.
Quotas
under this
approach,
shaded policies
would be
appropriate only
as remedies for
lingering or
ongomg
discrimination
�Attachment 2: A Least Intrusive Alternative Approach
'
-
.
.
0 p port unity "---..:--------------------:-------------------:...----------~----------.----------------------:... Res u Its
Opportunity
Enhancing
Assistance
. Advantages &
· Flexible Preferences ·
Compensatory ed;
Outreach & recruiting;
HBCUs
Multi factor
admissions policies:
e.g., UC-Berkeley
Set-asides
Quotas
.......
.....
·-::
c
='
......
,_
0
0.
0.
0
Education
Employment
Outreach & recruiting;
Apprenticeships;
Second look programs:
e.g~, the military -
Multifactor hiring:
e.g., j udidal selection;
the Chicago police
.dept.
Technical assistance;
Mento ring;
Bonding assistance
10% bid preference;
"Subcontractor
Compensation
program":
e.g., the Adarand case
:e:
c...
(")
r
,_.
to
:::c
)>,
:::c
-<~
"'tJ~
:I:
<l).
o~X
-+
0
(")
0
"'tJ
-<
·Contracting
&
Procurement
under this
approach, shaded·
policies would be
appropriate only
in court-ordered
remedies
lined programs
would be available
either to remedy
lingering or
ongoing
discrimination or
to increase
diversity, but only
if less intrusive
policies are not
effective
�Attachment 3: An Anti-Exclusion Approach
0 p po rtu n itY
------------------------------------------------------------------------------------------ Res u Its
Opportunity
Enhancing
Assistance
Advantages &
Flexible Preferences
Compensatory ed;
Outreach & recruiting;
HBCUs
Multifactor
admissions policies:
e.g., UC-Berkeley
Set-asides
Quotas
;;.-,
.....
·=
=
.....
1-.
0
0.
.
o.1 Education
0
.
}':}\:=:=: : ' ·
:::
Employment
Outreach & recruiting;
Apprenticeships;
Second look programs:
e.g., the military
. Multifactor hiring:
e.g., judicial selection;
the Chicago police
dept.
l
under this
approach,
: J shaded policies
would be
mu&1[;~'.=.::::::-l :~~~oJ~~~;d~~~
ongomg
discrimination
=E
c...
C')
rto
::0
Contracting
)>
::0
-<
""C
:I:
0
~
0
C')
0
""C
-<
I
&
- Procurement
=
.....
<I)
<I)
~
~
Technical assistance;
Mento ring;
Bonding assistance
10% bid preference;
"Subcontractor
Compensation
program".
e.g., the Adarand case
__..-'
~
-v
�(May 3, 1995)
April 20, 1995
MEMORANDUM FOR THE 'PRESIDENT & THE VICE PRESIDENT (EXCERPTS)
A.
Education: Race- or Gender-Specific Scholarships ·
Option 1:
Maintain current policy' which requires exhaustion of alternatives to eli versitybased use of race- or gender-specific scholarships. ·
·
II
II
Option 2: ."Tweak" current policy to require added analysis of alternatives.
Option 3:. Bar use of such scholarships except as necessary to remedy past discriillination;
otherwise, dilute exclusivity through broader eligibility.
B.
Employment: Race or Gender in Layoff Decisions
Option 1:
Option 2:
C.
As a policy matter, whennot inconsistent with a bona fide seniority system,
diversity may be. considered in layoffs, but only in limited circumstances.
As a policy matter, race or gender should not be considered in layoff decisions.
Procurement: Preferences & Set-asides
Option 1:
Eliminate misuses; expand pre-bid assistance. In particular: establish tighter
asset-'related eligibility rules to prevent the "disadvantaged millionaire"
·phenomenon; limit the concentration of set-asides in a single region or industry;
and set standards (by business sector and by region) to determine when
preferences are no longer necessary. · With regard to pre-bid assistance: invest in
new, vigorous outreach, technical assistance, and surety bonding.programs to help
level the contracting playing_ field; continue efforts to "mainstream" minority and
·women-owned businesses in SBA's programs.
Option 2:
Broaden eligibility, but retain race- and gender-based preferences; emphasize the
transitional character of program. In addition to the measures in option 1, take the
following steps:
Social or Economic Disadvantage: Eliminate the requirement that owners be
WJC LIBRARY PHOTOCOPY .
�_,
"socially disadvantaged," thus opening up eligibility to white owners who
demonstrate "economic disadvantage." Maintain a less stringent economic
disadvantage test for minorities and -cjor the first time outside DOT) for
women; this separate standard would preserve some differential benefit for
minorities and worrien, but without excluding disadvantaged whites from the
program altogether. To minimize ·any harm to current participants, increase
·
the goal for total SDB procurement ~rom 5% to 10%.
Strict transition requir~ments: Require graduation) from the program for all
SDBs after, say, four years or four contract awards. This. limits the moral cost
of maintaining preferential treatment for women and minorities.
Option 3:
Convert to race-neutral programs. Phase out race- and gender-based eligibility,
relying instead on race- and gender-neutral criteria of economic disadvantage only.
\
2
WJC LIBRARY PHOTOCOPY
�>ll..
(.\BRA"f?
0
u
~~-
l~ ~
''" ___.
~OJ.N\
(#) --
j
9/
'
Procurement
Employment
Education
indicates option number
in the memorandum
:I:
ll..
>-
0::
<(
D
''Calibrated,
Opportunity''
Approach
D
(1) Maintain current policy
requiring exhaustion.
D
(1) Permit limited
consideration of race/gender in
layoffs.
-
''Least Intrusive
Alternative''
Approach
''Anti.;.Exclusion''
Approach
)
D
D
(1) Maintain current policy
requiring exhaustion; or
(2) "Tweak" current policy,
requiring added a11alysis.
D - (3)
Eliminate race- and
gender-based aid by
expanding eligibility,
softening exclusion.
D
(2) Oppose consideration of
race/gender in layoffs.
_j
u
==
(3) Convert· to race-neutral
programs.
D
(2) Reform & sharply narrow
preferences; emphasiZe transition;
add disadvantage eligibility.
·D
(2) Reform & sharply narrow
preferences; emphasize transition;
add disadvantage eligibility; or
(2) Oppose consideration of
.race/gender in layoffs.
D
-
a:~'
'
(1) Permit limited
consideration of race/gender in
layoffs; or
D
0::
(2) Reform & sharply narrow
. preferences; emphasize transition;
add disadvantage eligibility; or
J
D
'
0
1-0
D
(3) Convert to race-neutral
programs.
A. "Calibrated Opportunity" Approach: Emphasize creating opportunity, .not guaranteeing results.
B. "Least Intrusive Alternative" Approach: Emphasize narrow tailoring, and concern for bystanders.
.
.
C. ''Anti-Exclusion" Approach: Emphasis on avoiding bald set-asides that annolJnce: "No whites need apply."
Additional Decision: FCC Broadcast Licenses: o (1) Maintain status quo, or
o (2) Establish a limited tax-certificate program.
3
�----· ····· ·....
*
. April 19, 1995
MEMORANDUM FOR THE PRESIDENT & THE VICE PRESIDENT
From:
George Stephanopoulos, Christopher Edley, Jr. & Peter Yu
Re:
Affirmative Action: Policy Issues
This memorandum presents options regarding federal affirmative action policy. Part I outlines
_options in four areas: .education, employment, procurement, and broadcast licenses. Part II
offers three alternative, broader perspectives that may be useful in your deliberations~ A
subsequent memorandum will ~iscuss the message, communications, and political dimensions
of these policy choices.
I.
AFFIRMATIVE ACTION IN
EDUCATION, EMPLOYMENT, AND PROCUREMENT
A.
Education: Race-
or Gender-Specific
Scholarships
Background. The central issue in the area of education concerns scholarships for which race
or gender is a condition of eligibility. This issue has two dimensions: (i) scholarships
administered by universities receiving federal assistance and (ii) federal scholarship programs.
With regard to (i),the current Administration· policy for enforcement of Title VI, announced
by Secretary Riley in February 1994, permits the use of race as a condition of eligibility for
financial aid in order (a) to remedy past discrimination or (b) to promote diversity, provided
the measure is narrowly tailored and does not unduly restrict access· to fmancial aid for
nonminoritY students. A measure is "narrowly tailored" if (1) race-neutral means would have
been ineffective; (2) a less extensive or intrusive use of race would have been ineffective; (3)
the measure is of limited extent and duration, and is ·applied in a flexible manner; (4) the
institution periodically reviews the continuing need for the mea~un~; and (5) the effect on
nonbeneficiaries is sufficiently small and diffuse so as not to unduly burden their opportunity
to receive fmancial aid. These restrictions apply to university-administered aid, whether
publicly or privately funded. Approximately 3.3% of all undergraduate fmancial aid, 4.3% of
ail graduate financial aid, and 12% of all professional-school fniancial aid is administered
through such scholarships.
WJC LIBRARY PHOTOCOPY
�~~E.SIDs--11
q~
f t~.
~
....I
~
'
Current policy with regard to gender-specific scholarships provides that institutio ~ may not
discriminate on· the basis of gender, but may administer privately-funded gend -specific
scholarships if the overall effect of such scholarships does not discriminate on the · is of
:gender. The majority of gender-speCific scholarships are limited to men, rather than women.
The federal government also directly administers a number of race- or gender-specific
scholarship programs. All · of these are designed to increase diversity in professions or
specialties in which racial or gender groups have been significantly underrepresented, either
because such inclusiveness' is deemed critical to the continued strength of that profession, or
because inclusion will lead to greater attention for neglected coinmunities and problems.
Supporters of these programs emphasize that these scholarships are necessary to attract women
and minorities to these areas. Examples include: NSF's Minority Graduate Fellowship
Program designed to increase the number of minority scientist arid engineers and NIH's
Minority Clinical Associate Physician Program designed to increase the number of minority
physicians.
Options. The policy options include:
.
'
.
Option 1: Maintain current policy, which requires "exhaustion" of alternatives to
diversity-based use of race- or gender-specific· scholarships .
Option 2: ."Tweak" current policy to require added analysis of alternatives.
Option 3: Bar use of such scholarships except as necessary to remedy past
discrimination; otherwise, dilute exclusivity through broader eligibility.
Analysis. Education policies regarding admissions and· scholarships are central. to public
concerns about affirmative action. Some view race- or gender-specific scholarships as a form
of "set-aside" and thus- reminiscent of quota-driven admissions policies (such as the dualadniissions system struck down in Bakke). On the other hand, education and training are on·
the· "opportunity" end of the opportunity-to-results spectrum, and the current policy requires
· that any race- or gender-specific programs be narrowly tailored.
·
Option 3, which focuses oh race-specific scholarships, was proposed by the Bush
Administration in 1991. This approach would send a clear message that no applicant should
be excluded from a scholarship prograni on the basis of race or gender. Arguably, this would
be a curious rule,· as it would leave intact numerous scholarships limited by religion, surname,
· geography, and other, more arbitrary criteria.
Option 2 would clarify the seriousness of the requirement that an institution wishing to use
such scholarships (outside .·of a remedial context) first analyze race- or gender-neutral
approaches and conclude they would not be effective substitutes for more exclusive
scholarships. The policy guidance would be ~ended to require the institution to be prepared,
if challenged, to present the evidence and analysis upon which its conclusion was based. (This
is the formulation used elsewhere in the guidelines, and by the courts, in explaining that when
an institution may invoke its history of discrimination as a remedial justification for race2
WJC LIBRARY PHOTOCOPY
�?RESto
.
.
.
.
.
.
.
.
~0~. (f/~ ~~~
~
~
0
specific scholarships.) On the one hand, this option amounts to a declaration t €race or gender r
should only be used as a condition of eligibility when truly necessary. On t e other hand, its [i
minimal practical effect might not justify the anxiety it would likely generate
ong minority...\~ ·
}-~
and women's groups.
·.Option 1 would maintain current policy. As noted in our discussions, race- or genderspecific scholarships are small slices of a much larger pie -- much of which is administered on
the basis of need. As there are so many different avenues for fmancial aid, it is possible to
argue that tace- or gender-specific scholarships do. not meaningfully- limit the opportunity of
any student, or· at least no more so· than does a scholarship limited to offspring of the Knights
of Columbus or the Daughters of the American. Revolution. ·
.Indeed, current antidiscrimination enforcement guidance from the Department of Education,
promulgated during the Reagan Administration pmsuarttto Title IX, makes the test for genderspecific scholarships whether the financial aid practices of the institution, taken as a whole,
provide equal opportunity. As a matter of constitutional doctrine, race-based distinctions are
subject to stricter scrutiny than gender-based distinctions. But this distinction seems tintenable
as a general matter of policy or politics. Hence,· any toughening of prohibitions on race-based
aid should probably be similarly applied to gender-based aid.
. Finally, we should note the ~elationship betw~en these options and the familiar hypothetical:
a college admissions or scholarship policy that favors the African American son of a successful
neurosurgeon, but not the son of a steelworker. Some argue that affirmative· action should be
only for economically disadvantaged minorities, because affluent minorities are evidently not
suffering from a lack of opportunity, relative to many less economically advantaged whites ..
The rebuttal has three central points. First, there· should be affmnative efforts to. provide
opportunity for economically disadvantaged individuals, both white and non-white; such efforts
need not come at the expense of affirmative action when it is legitimately directed at minorities
on the basis of concerns apart· from economic disadvantage. Second, apart from economic
disadvantage, but still within the realm of "private fairness," it is often observed that
comparatively advantaged minorities nevertheless continue to face social and other obstacles
solely because of prejudice and discrimination, and that these disadvantages, while different ·
from badges of poverty, .are a fair basis for attention. Third, in the realm of institutional and
societal benefit, a college might properly conclude that the institution will ·benefit from
inclusion of the neurosurgeon's son-- even though affluent-- just as they might conclude that
the diversity benefit of including a bassoonist is weighty not withstanding the musician's
affluence. In America today, it remains likely that the neurosurgeon's experiences, perspective,
and aspirations will reflect some aspect of the distinctive reality facing blacks. And the
college may choose to value that.
B. .
Employment: Race· or Gender in Layoff Decisions
Background.
The central issue in this area concerns_ race or gender as a consideration m
3
WJC LIBRARY PHOTOCOPY
�layoffs: Under ci.rrrent !aw, two propositions are clear. . First, layoffs cannot b
m~ans to implement an· affirmative action policy ·by. "making room" for ne
. employees.. Second, race or gender cannot tnunp a bona fide seniority system.
The reach of this second pr~ciple is limited. while seniority systems ·are common in the
public :;ector, the decline of unionism has reduced the private sector's reliance on such systems.
Thus,. reportedly, many large firms expressly consider diversity in their layoff policies, and
with significant results: Illinois Bell cut 930 management jobs, butthe proportion ofminority
_managers rose from. 25 to 27%; Baxter cut 20% of its 2000 employees, but the proportion of
minority managers increased from 10 to 12%;
.The narrow question of "tie-breakers". is thus most likely to arise in the context of a seniority
system · where layoff dec!sions are more structUred. In the Piscataway case, the Justice
Department has argued that Title VII does not prohibit the School Board from using race as
a tie-breaking consideration in pursuit of a legitimate interest in diversity. In th~ context of
the federal civil service, the OPM regulations are silent: the Departnient of Justice (Office of
Legal Counsel) believes the statutes and caselaw would, as in Piscataway, permit narrowly
tailored consideration of race or gender. ·
·
Options. The policy options inelude:
Option 1: As a policy matter, when not inconsistent with a bona fide seniority system,
diversity may be considered· in layoffs; but only in limited circumstances.
Option 2: As a policy matter, race or gender should not be considered in layoff
decisions.
· Analysis~ . Concerns about employment are two-fold. In certain· sectors, there is a sen·se that
. some job opportunities are limited to "diversity candidates" and thus that white .males are
excluded. Second, there are concerns that in a continuing era of corporate reengineering,
women and minorities are, due to affrrmative action, at less risk of being laid- off.· (As you .
have noted, affirmative action is sometimes used cynically to justify decisions made for other
reasons, legitimate and otherwise.)
Option 2 would issue a sharp and clear statement and would provide some comfort to
whites, males, and their dependents, in a time of insecurity. (There would be a corresponding
reinforcement of minoritY _and women concerns about their marginality:) In. the public
employment context, this is likely to have little policy impact because of seniority rules, and
thus will affect only tie-breaker-type situations. However, this option would send a loud signal
to the private sector and could have an effect on private practices~
Option 1 is closer to the status quo, but does not l~nd itself to a simple rule. Instead, this
approach would call for the common-sense balancing of the institution's general diversity
interest and the blirden on identifiable majority employees. Consideration of race or gender
would be permissible only: .when necessary for the institution's operation; when a mallifest
4
WJC LIBRARY PHOTOCOPY
�· racial or gender imbalance exists; and when less race-intrusive considerations ar
If you select this option, announcing a clarification of federal layoff policy coul underscore
the very high hurdle you would impose, but might also serve to focus resentments ound the
entire issue. In ai1Y case, however, we are likely to face continuing questions regarding ~~or
and policy surrounding the Piscataway situation.
C.
Procurement: Preferences & Set-asides
Background. Federal law· establishes several goals for the distribution of federal procurement
opportunities: 20% for small businesses; 5% for small disadvantaged businesses (SDBs -virtually all of which are minority-owned 1); and 5% for women-:owned businesses. There is
· a web of programs designed to reach these goals; some are government-wide, other are agencyspecific. These efforts use several tools:
·
• Sole source procurements: Under SBA's 8(a) program, small disadvantaged businesses
(SDBs) can secure smaller sole-source contracts· (usually less than $3 million).
• Sheltered competition: Under DOD's "rule of two," a contract is set aside for SDBs ifthe
officer believes two or more SDBs are likely to make competitive bids on the contract. (If
this set-aside is not triggered, there is a similar "rule of two" for all small businesses.
Failing this, there is open competition.)
• Bid preferences: Iri open competitions, DOD awards a 10% bid preference to SDBs; last
year's procurement reforms authorized government-wide use of this preference.
• Subcontracting incentives: DOT provides an incentive payment to prime contractors who
(vo~untarily) subcontract with SDBs, including wo~en-owned firmsj (The Adarand issue.)
These efforts have been successful in expanding procurement opportunities for women- and
minority-owned firms. Between 1982 and 1991, while the dollar volume of all contracts
increased by 24%, .contracts awarded to women-oWned firms tripled and contracts awarded to ·
minority-owned firms doubled. Of late, these increases have been accompanied by actual
decreases for non~disadvantaged small firms. For example, while DOD's contracting with
SDB's more than doubled, its contractirig with other small businesses fell by nearly 20%.
·Several aspects of these efforts have not been successful. Graduation ·rates from the 8(a)
program remain low and the possibility of abusive practices remain, although recent statutory
and administrative efforts promise some improvements. Outside of the limited 8(a) program,
however, ·there are no graduation requirements apart from what happens naturally if a business
is no longer "small" or an entrepreneur accumulates substantial ~ealth. In addition, these
1
In the Department of Transportation's program only, the SDB definition includes women.
5
WJC LIBRARY PHOTOCOPY
�~~~§to~
"o
l lSI
programs have had a disparate impact on particular regions and industries -- sue ~ smaller
construction projects and certain transportation sub-industries. Finally, while the 8 ~program
permits nonminority firms to participate upon a showing that a firm's owners are 11 cially and
economically disadvantaged," in practice only about 1.6% of all 8(a) firms are w e-owned
(and those· mostly disabled), because the 1978 statute links 11 social disadvant
membership in a group subject to discrimination.
'11;..
.
Options. The policy options include:
Option 1: Reform the programs to emphasize their transitional character; eliminate
misuses. This would involve tighter asset-related eligibility· rules, phased
graduation for all SDBs, limits on the concentration of set-asides in a single
region or industry, and standards to determine when preferences are no longer
necessary by business sector and by region.
Option 2: Expand eligibility to include more nonminority firms. This would involve
revising the current conjunctive statutory criterion ( 11 socially and economically
. disadvantaged .. ) to a disjunctive ( 11 socially or economically disadvantaged .. ). In
addition, the goal for total SDB procurement could be increased from 5 to 10%.
Option 3: Sharply focus on "entryway" to entrepreneurship for both minorities and
disadvantaged. In addition to the anti-misuse reforms it} option 1, and the
broader class- or need-based eligibility of option 2, impose very tight limits on
the number of contracts an individual· SDB or entrepreneur could win through
sole-source, set-aside or bid pr..eferences.
Option 4: Convert to race-neutral programs. Phase out race-. and gender-based
eligibility, relying instead on race- and gender-neutral criteria of economic
disadvantage. Limit race or gender..;specific assistance to less exclusive and less ·
intrusive assistance tools . -- i.e., technical assistance, surety bonding and
outreach.
Analysis. While procurement policies do not have wide visibility, they are. arguably more
problematic than either education or employment policies. The practical effect of a set-aside
such as the rule-of-two is to take a specific contracting opportunity and hang out a shingle
saying 11Whites need not apply... . Some view this as more problematic than minority-only
scholarships, suggesting an intuition that providing profitable business opportunities seems
more directed toward rewards or equal results than towards ·equal.opportunity; education is
different. Moreover, some view the procurement set-aside as problematic, even though 97
percent of contracting opportunities continue to go to rion-SDBs.
At the same time, preferences may be more necessary in procurement for several reasons.
First, anti-discrimination laws are more difficult to enforce in this area, especially in the ·
subcontracting realm. Second, 11 0ld""boy 11 networks are arguably stronger in .this area, so that
informal exclusionary practices beyond the reach of law enforcement can be potent and
persistent. And fmally, procurement decisions often turn on a single factor --price --and thus
the multi-factor mechanisms used in education and employment are less available in this area._·
6
WJC LIBRARY PHOTOCOPY
~
�.
.
.
.
..
.
Option 4 would issue a clear statement that federal contracts should not be aw
basis of race or gender. Under this view, set-asides are much like quotas. Curren preference
programs would be converted to focus on economic disadvantage. This option r re.sents a
judgment that whatever the group-based discrimination or disadvantages faced by : ority
entrepreneurs,· no special policy measures ·are appropriate beyond pool,. development strategies
and race.:. neutral preferences. If one were to support race-specific scholarships but embrace this
option, one could distinguish procurement as "more related to results than to opportunity."
This approach is far inore· restrictive that Supreme Court precedents, which permit set-asides
based on legislative fmdings of discrimination or lingering effects. 2
Option 3 would retain a· reduced preferen~e program, but focus it sharply on mechanisms
more unambiguously related to creating opportunity for entrepreneurship, rather than a
guarantee .of entrepreneurial success. Thus, in addition to technical assistance and other poolenhancing activities described above, this approach .would use preferences and sheltered
competition on a limited basis to help "break the ice," but then quickly push entrepreneurs to .
compete on terms comparable to small business·es generally. (Recall that all small businesses
have· a rule-of-two set-aside available to them as well, but only if an SDB set-aside is not
triggered.) The racial exclusivity of the preferences. would be alleviated by opening eligibility
to non-minority firms based on economic disadvantage.
·
Option 2 would simihirly render these programs less exclusive and recharacterize them a:s
for "disadvantaged" businesses, with race merely one-- but not the only-- way to demonstrate.
· disadvantage. _It would not narrow the overall ambition of the program to the extent of option
3. Operationally, this is likely to have only a modest effect on minority contracting. Prior to
the codification of its minority entrepreneurship focus in 1978, the 8(a) program used this
approach; at that time, about 4% of all 8(a) firms were white-owned. In sum, race becomes
irrelevant in option 4; in this option its exclusionary effect is diluted.
· ·Option 1 would ameliorate several of the most problematic practices in the program.
· Limiting participation, encouraging graduation, and tightening the asset tests emphasizes that
8(a) is an entryway, not an entitlement. Limiting concentrated use of preferences reduces the
unfairness to white bidders in a particular region or sector. While these changes would be
significant, some would view this as ,;mere tinkering" that does not address the fundamental
objection --namely, the exclusivity of these programs.
Distressed Areas:· In addition ·to these policy options, we have also beglin to develop a
complementary option: procurement preferences that focus less directly on minority capitalism
and more on job-creation for disadvantaged persons and distressed communities.· Some of
these alternatives would be place-based and others employee-based; we are currently examining
issues of administrability. Example of such initiatives include:
2
The Court has required a somewhat more rigorous demonstration by state and local governments than
by the Congress. The Adarimd ruling, expected before July; presents an opportunity for the Court to announce
more. restrictive principles.
7
WJC LIBRARY PHOTOCOPY
�·
~~ESID~
f~ \8~ \
•
•
·•
•
Provide set-asides or other preferences for firms whose workforce (o ahe contract)
asures based
would be drawn more than X% from chronically distressed areas, using
on Census and BLS data. (There are two especially well-!egarded altern 've indices
of distress in the social science literature. ) Or
·
· Provide pre~erences to firms whose workforce would be drawn more than X% from
targeted population groups, such as recent AFDC or food stamp· recipients. Or
Provide !?references as above, but based also on the employment of underrepresented
~~~&
.
.
Employ any of these approaches, but scale the magnitude or duration of the preference
according to the firm's workforce "score."
Bearing in mind that such an initiative speaks somewhat separable policy and political
objectives, you may decide that such an empowerment contracting scheme should be a (i)
substitute for, (ii) complement to, or (iii) condition of the reformed entrepreneurship
preferences.
.
FCC Auctions:
Your decision on procurement set-asides Will also govern the
. Administration's position regarding the FCC's auction of "personal communication systems"
(PCS) licenses. Phases of the PCS auction have been stayed pending resolution of a
constitutional challenge to bid. preferences afforded minority- imd women-owned firms by
Commission regulations.
Because PCS licenses are for cellular and other . wireless
communication rather than for broadcasting, a programming-diversity rationale will not justify
group-based preferences. Instead, .· the motivation is to create inclusive entrepreneurial
opportunity, where there otherwise would be none, in a critical emerging industry. Preferences
'
in the PCS auction should be handled like procUrement preferences.
D.
FCC Preferences in Broadcast Licenses
Background. Programs administered by ·the FCC concerning broadcast licenses are sui generis
. because of th~ linkage between diversity of ownership and diversity of prograri:uning. Of the
FCC's three "affmnative action" efforts, one is not significant (a preference for minority
purchasers in distress sales which is rarely used), a second is not controversial (consideration
of race as one of many factors in comparative licensing decisions), and the third -- the "§
1071" tax certificate at issue in the Viacom transaction --has just been repealed. The primary
issue here is whether we should attempt to revive the tax certificate program in a more limited
form.
Options. The policy options include:
Option 1: Maintain the status quo.
Option 2: Establish a limited tax certificate program. Potential misuse of the program
would be limited by (i) capping the value of the tax benefit at an amount below
$100 million; (ii) lengthening the period a minority owner must retain a license
8
WJC LIBRARY PHOTOCOPY
�from one to several (possibly five) years; and (iii) ensuring
actually control the licensed company.
Analysis.· The tax certificate program has been highly successful. In 1978, minorities;....,.._.,.,
0.5% of all broadcast licenses; today, 17 years later, that proportion has increased five-fold to
2.9%. FCC officials, including the Chairman, believe that, but for § 1071, most of these
transactions would not have occurred. Option 2 would propose to reinstitute this program, but
in a manner that would prevent Viacom-like transactions by capping the aniount of the tax
benefit in any one transaction, increasing the holding period for the riiinority purchaser to
prevent quick resales, and ensuring that no individual entrepreneur or firm benefitted repeatedly
fromthe preference.· (We have not identified a PAYGO offset for this option.) Option 1
would avoid reopening the battle over these issues ..
II.. PUTTING THE PIECES TOGETHER:
BROADER PERSPECTIVES
Your. policy choices in this area may be most easily defended if they reflect a .coherent
theory or approach. This Part outlines three such approaches, and describes the policy choices
that seem· most· easily justified within that approach. (See Exhibit L) Each is consistent. with
some basic inclinations you expressed in our various "vision" discussions, including:
.
.
•
il
•
A.
·. Emphasize antidiscrimination and opportunity, rather than guaranteeing results.
Stress the remedial justification, but also embrace the goal of inclusion.
Respect the interests of bystanders, by crafting policies carefully and narrowly.
The "Calibrated" Approach
·This approach emphasizes the difference between equal opportunity and equal results in two
dimensions. In terms of the policy tools one uses, outreach and training are less result-driven
and thus less problematic than set-asides or quotas. Similarly, in terms of the context, ant
specific affirmative action tool is less problematic in education (which expands opportunity)
than . similar efforts in procurement (which more directly affects the distribution of wealth).
.
This approach supports a broader range of affirmative action policies in education than in
procurement, as illustrated by the diagonal orientation of the "border· area" in Attachment 1.
Thus, certain kinds of set-asides are acceptable for scholarships, but should be eliminated or
sharply focused in procurement. With regard to the policy choices outlined above, this .
approach would support:
Education:
Employment:
Option 1 -- Maintain current policy.
Option 1 -- Permit race or gender to be considered in layoff decisions.
9
WJC LIBRARY PHOTOCOPY
�Procurement:
B.
Option 4 or 3 -- Phase out or sharply narrow procurement p
set-asides.
The "Least Intrusive Alternative" Approach
A second approach expresses more overt solicitude for bystanders by stressing that
· affirmative action m~st be narrowly tailored to minimize exclusivity and the use of race- or
gender-based decisioninaking. Thus, result-driven quotas are ·always inappropriate (except in
rare court-ordered remedies), and set-asides may only be used (i) when they are either broadly
remedial or (ii) when less intrusive alternatives are not effective. In essence, this approach
would· apply the Title VI scholarship policy to all three sectors.
Of course, "effectiveness" will be a matter of degree, and there is an implied balancing of
the benefits of inclusion with the costs of exclusion. Prior discrimination is relevant, as is the
opportunity-results distinction. So, one might weigh those costs and· benefits somewhat
differently in different contexts: it matters if an institution or industry has a history of
discrimination, . in which case the narrowness need not be too scientific; and it matters if the
context is procurement, where the distribution of largesse ought to be· narrowly tailored indeed.
This approach leads to support for limited use of race-specific programs. In particular (as
illustrated in Attachment 2):
Education:
Employment:
Procurement:
C.
Option 1 or 2 -- Maintain or tighten cirrrent policy. ·
Indeterminate -- Either option on consideration of race/gender in layoffs.
Option 1 or 3 -- Reform or sharply narrow preferences and set-asides.
. The "Anti-Exclusion" Approach
A third approach emphasizes the moral cost of maintaining programs that exclude persons
on the basis of -race or gender -- even in the. name of diversity. This approach entails
opposition to the rule-of.:·two SDB set-aside and to race- or gender-specific scholarships; these
are effectively indistinguishable from quotas. . Instead, such programs would have to be
revamped to rely on multifactor consideratio:q.s in which.race is but one factor, or on race~ and
gender-neutral approaches.
·
·
This approach leads one to support elimination of set-asides in all areas. In particular (as
illustrated in Attachment 3):
Education:
Employment:
Procurement:
Option 3 -- Eliminate race- or gender-specific scholarships.
Option 2 -- Oppose consideration of race or gender in layoff decisions.
Option 2 or 3 -- Expand eligibility to include nonminority firms.
10
WJC LIBRARY PHOTOCOPY
�EXHIBIT
l
Provisional Decisions: Check one box (D ) in each colurrui_
(#) --
indicates option number
in the memorandum
Education
Employment
Procurement · ·
0
0
(1) Maintain current policy
0
requiring exhaustion.
Approach
o (i) Maintain current policy
"Least Intrusive
Alternative"
Approach
0
requiring exhaustion; or
0
(2) "Tweak" current policy,
requiring added analysis.
(3) Narrow preferences; emphasize
"entryway"; add disadvantage as a
basis of eligibility; or
0
"Calibrated,
Opportunity"
(4) Convert to race-neutral
programs; build the pool -
0
(1) Reform to address abuses, limit
unfairness; or
(1) Permit limited
consideration of race/gender
in layoffs.
(1) Permit limited
consideration of race/gender
in layoffs; or
\
0
0
'
(2) Oppose consideration of
race/gender. in layoffs.
(3) Narrow preferences; emphasize
"entryway"; add disadvantage as a
basis of eligibility.
o · (2) Expand eligibility to include
. "Anti-Exclusion"
Approach
'
o (3) Eliminate race- and
gender-based aid by
expanding eligibility,
softening exclusion.
disadvantaged majority firms; or
0
(2) Oppose consideration of
race/gender in layoffs.
0
(3) Narrow preferences; emphasize
"entryway"; add disadvantage as a ·
_basis of eligibility.
=e
c...
C')
r
OJ
;::c
)>
;::c
-<
A. ''Calibrated Opportunity" Approach: Emphasize creating opportunity, not guaranteeing results. Therefore, oppo
building contexts (education) and tools (outreach) are strongly favored.
B. "Least Intrusive Alternative" Approach: Emphasize narrow tailoring, that use of race/gender in decisionmaking
moral cost, and that the interests .qf bystanders are entitled to sorne ·weight in constructing affirmative measures. ·
C. "Anti-Exclusion" Approach: Emphasis on avoiding bald· set-asides that announce: No whites need apply." ·
""0
:c
0
-1
0
C')
Additional Decision Point: FCC Broadcast Licenses
o (1) Maintain the status quo.
o (2) Establish a limited tax-certificate program.
0
""0
-<
11
�\
··.:).
April 15, 1995
:MEMORANDUM FOR THE PRESIDENT & THE VICE PRESIDENT
From:
George Stephanopoulos, Christopher Edley, Jr. & Peter Yu
Re:
Affirmative Action: Policy Issues
This memorandum presents options regarding federal affliiliative action policy. Part I outlines
options in three areas: education, employment, and procurement. Part II offers two alternative,
. · broader perspectives that may be useful in your deliberations. A subsequent memorandum will
discuss the message, communications, and political dimensions of these policy choices.
I.
AFFIRMATIVE ACTION IN
EDUCATION, EMPLOYMENT, AND PROCUREMENT
A.
Education: Race- or Gender-Specific Scholarships
Background. The central issue in the area of education concerns scholarships for which race
or gender. is a condition of eligibility. This issue has two dimensions: (i) scholarships
administered by universities receiving federal assistance and (ii) federal scholarship programs.
With regard to (i), the current Administration policy for enforcement of Title VI, announced
by Secretary Riley in February 1994, permits the use of race as a condition of eligibility for
fmancial aid· in order (a) to remedy past discrimination or (b) to promote diversity, provided
the measure is narrowly tailored and does not unduly restrict access to. fmancial aid for
nonminority students. A measure is "narrowly tailored" if (1) race-neutral means would have
been ineffective; (2) a less extensive or intrusive use of race would have been ineffective; (3)
the measure is of limited extent and duration, and is applied in a flexible manner; (4) the
institution periodically reviews the continuing need for the measure; and (5) the effect on
nonbeneficiaries is sufficiently small and diffuse so as not to unduly burden their opportunity
to receive .financial aid. These restrictions apply to university-administered aid, whether
publicly or privately funded. Approximately 3'.5% of all minority students at four-year colleges
receive race-specific scholarships.
This represents less than 1% of all fmancial aid
administered by these institutions.
Current policy with regard to gender-specific scholarships provides that institutions may not
discriminate on the basis of gender, but may administer privately-funded gender-specific
scholarships if the overall effect of such scholarships does not discriminate on the basis of
WJC LIBRARY PHOTOCOPY
�gender. The majority of gender-specific scholarships are liinited to men, rather
The federal government also directly administers a number of race- pr gender ecific
scholarship programs. All of these are designed to increase diversity in professions or
specialties in which racial or gender groups have been significantly underrepresented, either
because such inclusiveness is deemed critical to the continued strength of that profession, or
because inclusion will lead to greater attention for neglected communities and problems.
Supporters of these progranis emphasize that these scholarships are necessary to attract women
and minorities to these· areas. · Examples include: NSF's Minority Graduate Fellowship
Program designed to increase the number of minority scientist and engineers ($ · _ million
in FY1995) and NIH's Minority Clinical Associate Physician Program designed to increase the·
number of minority physicians ($_million in FY1995).
Options. The policy options include:
Option
i: ~Maintain
current policy, which requires "exhaustion" of alternatives to
diversity.:based use of race- or gender-specific scholarships.
Option 2: "Tweak" current policy to require added analysis of alternatives.
Option 3: Bar use of such scholarships except as necessary to remedy ·past
discrimination; otherwise, dilute exclusivity through broader eligibility.
Analysis. Education policies regarding admissions and scholarships are central to public
concerns about affmnative action. Some view race- or gender-specific scholarships as a form.·
of "set-aside" and thus reminiscent of quota-driven admissions policies (such 1as the dualadmissions system struck down in Bakke). On the other hand, education and training are on
the "opportunity" end of the. opportunity-to-results spectrum, and the current policy requires
that any race- or gender-specific programs are narrowly tailored.
Option 3, which focuses on race-specific scholarships, was proposed by the Bush
Administration in 1991. This approach would send a clear message that no applicant should
be excluded from a scholarship program on the basis of race or gender. Arguably, this would
be a curious rule, as it would leave intact numerous scholarships limited by religion, surname,
geography, and other, more arbitrary criteria.
Option 2 would clarify the seriousness of the requirement that an institution wishing to use
such scholarships for non-remedial, diversity-related purposes first analyze race- or genderneutral approaches and conclude they would not be effective substitutes· for more exclusive
scholarships. The policy guidance would be amended to require the institution to be prepared,
if challenged, to present the evidence and analysis upon which its conclusion was based. (This
is the formUlation used elsewhere in the g~idelines, and by the courts, in explaining that when ·
an institution inay invoke its history of discrimination as a remedial justification for racespecific-scholarships.) On the one hand, this option amounts to a declaration that race or gender
should only be used as a condition of eligibility when truly necessary; On the other hand, its
minimal practical effect might not justify the anxiety it would likely generate among minority
2
WJC LIBRARY PHOTOCOPY
�.
and women's groups.
~
0
~
1-...
'(~ESIDs-1'
b
-l
~
\0
~
r-
..J
Option 1 would maintain current policy. As noted in our discussio , race- or gende
specific scholarships .are small slices of a much larger pie -- much of whicli ·s administered
the basis of need. As there are so many different avenues for financial ai , .t is possibl~ o
argue that race- or gender-specific scholarships do not meaningfully limit the o
. of
any student, or at least no niore so than does a scholarship limited to offspring of the Knights
of Columbus or the Daughters of the American Revolution.
·
Indeed, current antidiscrimination enforcement guidance from the Department of
Education, promulgated during the Reagan Administration pursuant to Title IX, makes the
test for gender-specific scholarships whether the fmancial aid practices of the institution,
taken as a whole, provide equal opportunity. As a matter of constitutional doctrine, racebased distinctions are subject to stricter scrutiny than sex-based distinctions. But this
. distinction seems untenable as a general matter of policy or politics. Hence, any .
toughening of prohibitions ori race-based aid should probably be similarly applied to sexbased aid.
Finally, we should note the relationship between these options and the familiar
hypothetical: a college admissions or scholarship policy that favors the African Americari
son of a succesful neurosurgeon~ but not the son of a steelworker. Some argue that
affirmative action should be only for economically disadvantaged minorities, because
affluent minorities are ·evidently not suffering from a lack of opportunity,· relative to many.
less economically advantaged whites. The rebuttal has three central points. First, there
should be affirmative efforts to provide opportunity for economically disadvantaged
individuals, both white and non-white; such efforts need· not come at the expense of
affirmative action when it is legitimately directed at minorities on the basis of concerns
apart from econonomic disadvantage. Second, apart from economic disadvantage, but still
within the realm of "private fairness," it is often observed that comparatively advantaged
minorities n:evertheless continue to face social and other obstacles solely because of
prejudice and discrimination, and that these ~isadvantages, while different from badges of
poverty, are a fair basis for attention. Third, in the realm of institutional and societal
benefit, a college might properly conclude that the institution will benefit from inclusion of
the neurosurgeon's son-- even though affluent --just as they might conclude that the
diversity benefit of including a basoonist is _weighty not withstanding the musician's
affluence.· In America today, it remains likely that the neurosurgeon's experiences,
perspective, and aspirations will reflect some aspect of the distinctive reality facing blacks.
And the college may choose to value that.
B.
Employm~nt: Race or Gender in Layoff Decisions
· Background. The central issue in this area concerns race or gender as a consideration in
layoffs. Under current law, two propositions are clear. First, layoffs cannot be used as a
3
WJC LIBRARY PHOTOCOPY
�The reach of this second principle is limited. While seniority systems are c · on i
e
public sector, the decline ofunionism has reduced the private sector's reliance on such systems.
Thus, reportedly, many large firms expressly consider diversity in their layoff policies, and
with significant results: Illinois Bell cut 930 management jobs, but the proportion of minority
·managers rose from 25 to 27%; Baxter cut_20% of its 2000 employees, but the proportion of
minority managers increased froin 10 to 12%.
The narrow question of "tie-breakers" is thus most likely to arise in the context of a seniority
system where layoff decisions are more s~ctured. In the Piscataway case, the Justice
Department has argued that Title VII does not prohibit the. School Board from using race as
a tie-breaking consideration in pursuit of a legitimate interest in diversity. In the context of
the federal civil service, the OPM regulations are silent: the Department of Justice (Office of
Legal Counsel) believes the stC~:_tutes and caselaw woUld, as in Piscataway, permit consideration
of race or sex, while OPM staff counsel believes· tie-breakers must be random.
Options. The policy options include:
.
.
Option 1: As a policy matter, when not inconsistent with a_ bona fide seniority system,
diversity may be considered in layoffs, but only in limited circumstances.
Option 2: As a policy matter, race or gender should not be considered in layoff
decisions.
Analysis. Concerns about employment are two-fold. In certain sectors, there is a sense that
some job opportunities are limited to "diversity candidates" and thus that white males are
excluded. Second, there are concerns that in· a continuing era of corporate reengineering,
women and minorities -are, due to affirmative action, at less risk of being laid off. (As you
have noted, affirmative action is sometimes used cynically to justify decisions made for other
reasons, legitimate and otherwise.)
Option ·2 would issue a sharp and clear statement and would provide some comfort to
whites, males, and their dependents, in a time of insecurity. (There would be a corresponding
reinforcement of minority and women concerns about their marginality.) In the public·
employment context, this is likely to have little policy impact because of seniority rules, and
thus will affect only tie-breaker-type situations.· However, this option would send a loud signal
to the private sector and could have an effect on private practices. ·
Option 1 is closer to the status quo; but does not lend itself to a simple rule. Instead, this
approach would call for the common-sense balancing of the institution's general diversity
interest and the burden on identifiable majority employees. ·Consideration .of race or sex would
be permissible only: when necessary for the institution's operation; when a manifest racial or
gender imbalance exists; and when the less race-intrusive considerations are not as effective.
4
WJC LIBRARY PHOTOCOPY
�If y9u select this option, announcing a clarification of federal layoff policy
C.
Procurement: · Preferences & Set-asides
Background. Federal law establishes several goals for the distribution of federal procurement
opportunities: 20% for small businesses; 5% for small disadvantaged businesses (SDBs -virtually all of which are minority-owned 1); and 5% for women-owned businesses. There is·
a web of programs designed to reach these goals, some are government-wide, other are agencysp-ecific. These efforts use several tools:
• Sole source procurements: Under SBA's 8(a) program, small disadvantaged businesses
(SDBs) can secure smaller sole-source contracts (usually Ie~s than $3 million).
• Sheltered competition: Under DOD's "rule of two," a·contract is set aside for SDBs if the
officer believes two or more SDBs are likely to make competitive bids on the contract. (If
this set-aside is not triggered, there is a similar "rule of two" for all small businesses.
Failing this, there is open competition.)
• Bid preferences: In open competitions, DOD awards a 10% bid preference to SDBs; last
year's procurement reforms authorized government-wide use of this preference.
• Subcontracting incentives: DOT provides an incentive payment to prime contractors who
(voluntarily) subcontract with SDBs, including· women-,owned firms. (The Adarand issue.)
These efforts have been successful in expanding procurement opportunities for women- and
minority-owned firms. Between 1982 and 1991, while the dollar volillne of all contracts
increased by 24%, contracts awar~ed to women-owned firms tripled and contracts awarded to
minority-owned firms doubled. Of late, these increases have been accompanied by actual
· . decreases for non-SDB and male-owned firms. For example, while DOD's contracting with
SDB' s more than doubled, its contracting with non-S DB firms fell by more than 20%.
Several aspect~ of these efforts have not been successful. Graduation rates from the 8( a)
· program remain low and the possibility of abusive practices remain, although recent statutory
and administrative efforts promise some improvements; outside of the limited 8(a) program,
however, there are no graduation requirements at all. In addition, these programs have had a
disparate impact on particular regions and industries -- such as construction and transportation ..
1
In the Department of Transportation's program only, the SDB defmition includes women. In the
· DOD and 8(a) programs, minorities own and control _. percent and _.·_percent of SDB firms, respectively.
5
WJC LIBRARY PHOTOCOPY
�Finally, while the 8(a) program permits nonminority firms to partiCipate upon
a firm's owners are "socially and economically disadvantaged," in practice o
of all 8(a) firms are white-owned, because the 1978 statute links "social dis
membership in a group subject to discrimination.
Options. The policy options 'include:
Option 1: Reform the programs to emphasize ·transition, eliminate misuses. This
would involve tighter asset-related eligibility rules, phased graduation for all
SDBs, limits on the concentration of set-asides in a single region or industry,
and standards· to determine when preferences are no longer necessary ·by
business sector and by region.
Option 2: Expand eligibility to include more nonminority firms. This would involve
revising the current conjunctive statutory criterion ("socially and economically
disadvantaged") to a disjunctive ("socially or economically disadvantaged"). In
addition, the over goal for SDB procurement could be increased from 5 to 10%.
Option 3: Sharply focus on "entryway" to entrepreneurship. In addition to the reforms
in option- 1, tight limits on the number of contracts an individual SDB or
entrepreneur could win through sole-source, set-aside or bid preferences.
Strengthen outreach, surety bonding and other·pool-building measures.
Option 4: Phase out these programs. Under this option, less exclusive and less intrusive
assistance to SDBs, such as technical assistance and outreach, would be
expanded..
Analysis. While procurement policies do not have wide visibility, they are arguably more
problematic than either education or employment policies. The practical. effect of a set-aside·
such· as the rule-of-two is to take a specific contracting opportunity and hang out a shingle
saying "whites need not apply." Some view this as more problematic than minority-only
scholarships, suggestirig an intuition that providing profitable business opportunities seems
more directed toward rewards or equal results than towards equal opportunity; education is
different. Moreover, some view the procurement set~asid.e as problematic, even though 97
percent of contracting opportunities continue to go to non-SDBs.
At the same time, preferences may be more necessary in procurement for several reasons.
First, anti-discrimination laws are more difficult to enforce in this area, especially in the
subcontracting realm. Second, "old-boy" networks are arguably stronger in this area, so that
inforn:lal exclusionary practices beyond the reach of law can be potent and persistent. And
fmally, procurement decisions often turn on a single factor --price --and thus the multi-factor
mechanisms used in education and emJ?loyment are less available in this area. ,
Option 4 ·would issue a clear statement that federal contracts should not be awarded on the
basis of race or gender. Under this view, set~asides are much like quotas. If one were to
support race-specific scholarships but embrace this option, one could distinguish procurement
as "more related to results than to opportunity." This approach is far more restrictive that
6
WJC LIBRARY PHOTOCOPY
�~?-ESID~t\1
~\~()' ~
E -~ t
('·.
Z
I
Supreme . Court precedents, · which permit .set-asides based on legislati ·eG fmdings of 05
discrimination or lingering effects. 2 Support through Federal procurement · r opening up /
entrepreneurship opportunities would be limited to pool-enhancing methods, sue .as technical r .
assistance, expansion of SBA's surety bond program, and outreach by procurement O~~~,....,.~.,......
prime contractors.
Option 3 would retain a small preference program, but focus it sharply on mechanisms more
unambiguously related to creating opportunity for entrepreneurship, rather than a guarantee of
entrepreneurial success. Thus, in addition to technical assistance and other pool-enhancing·
activities described above, this approach would use preferences and sheltered competition on
alimited basis to help "break the ice,"but then quickly push entrepreneurs to compete on terms
comparable to small businesses generally. (Recall that small businesses genergtlly have a rule:.
of-two set-aside available to them as well, but only if an SDB set-aside is not triggered.)·
Option 2 would render these program~ less exclusive and recharacterize them as for
"disadvantaged" businesses, with race merely one -- but not the only -- way to demonstrate
disadvantage. Operationally, this is likely to have only a modest effect on minority contracting.
Prior to the codification of the 8(a) program in 1978, SBA employed this approach; at that
time, about 4% of all 8(a) firms were white-owned.
Option 1 would ameliorate some of the most problematic practices . in the program ..
Limiting participation, encouraging ·graduation, and tightening the. asset tests emphasizes that
8(a) is an entryway, not an entitlement. Limiting concentrated use of preferences reduces the
unfairness to white bidders in a particular region or sector. While these· changes would be
significant, some would view this as "mere tinkering" that does not address the fundamental
objection -- namely, the ~xclusivity of these programs.
In addition to these policy options, we have also begUn. to develop a complementary option:
procurement preferences that focus less on minority capitalism and J!lOre on job-creation·· for
minorities and other disadvantaged persons. Some of these strategies are place-based and
others are employee-based. Preliminary alternatives are ·outlined in Attachment 4. ·
II. PUTTING THE PIECES TOGETHER:
BROADER PERSPECTIVES
.
Your policy choices in this area may be most easily defended if they reflect a coherent
theory or approach. This Part outlines three such approaches, and describes the policy choiCes
that seem most easily justified within that approach. (See Exhibit 1.) ·Each is consistent with
'
2
The Court has required a somewhat more rigorous demonstration by state and local governments
than by the Congress. The Adarand ruling, expected before July, presents an opportunity for the Court to
announce more restrictive principles.
7
WJC LIBRARY PHOTOCOPY
�some basic inclinations you expressed. in our various "vision" discussions, incl
•
•
•
A.
.Emphasize antidiscrimination and opportunity, rather than guaranteeing re
Stress the rem_edial justification, but also embrace the goal of inclusion.
Respect the interests of bystanders, by crafting policies carefully and narrowly.
The "Calibrated" Approach
This approach emphasizes the difference between equal· opportunity and equal results in two
dimensions. In terms of the policy tools one uses, outreach and training,.are less result-driven.
and thus less problematic than set-asides or quotas. ·Similarly, in terms of the context, ant
specific affirmative action tool is less problematic in education (which expands opportunity)
than similar efforts in procurement (which more directly affects the distribution of wealth).
This approach supports a broader range of affirmative action policies in education than in
procurement, as illustrated by the diagonal orientation of the "border area" in Attachment 1.
Thus, certain kinds of set-asides are acceptable for scholarships, but should be eliminated or
sharply focused in procurement. With regard to the policy choices . outlined above, this
approach would support:
Education:
Employment:
Procure_ment:
B.
Option 1 -- Maintain current policy.
Option 1 -- Permit race or gender to be considered in layoff decisions.
Option 4 or 3 --Phase out procurement preferences and set-asides.
The "Least Intrusive Alternative" Approach
A second approach expresses more overt solicitude for bystanders by stressmg. that
affirmative action must be narrowly tailored to minimize exclusivity and the use of race- or
gender-based decisionmaking. Thus, result-driven quotas are always inappropriate (except in
rare court-ordered remedies), and set-asides may only be used (i) when they are either broadly
remedial or (ii) when less intrusive alternatives are not effective. In essence, this approach
would apply the Title VI scholarship, policy to all three sectors.
Of course, "effectiveness" will be a matter of degree, and there is an implied balancing of
the benefits: of inclusion with the costs of exclusion. Prior discrimination is relevant, as is the .
.opportUnity-results distinction. So, one might weigh those costs and benefits somewhat
differently in different contexts: it matters if an institution or industry has a history of
. discrimination, in which case the narrowness need not be too scientific; and it matters if the
context is procurement, where the distribution of largesse ought to be narrowly tailored indeed.
This approach leads to support for limited use of race-specific programs. In particular (as
illustrated in Attachment 2):
8
WJC LIBRARY PHOTOCOPY
�Option 1 or 2 -- Maintain or tighten current policy ..
Education:
Indeterminate -- Optiori 1 or 2.
Employment:
· Procurement: . Option 1 or 3 -- Reform or sharply narrow preferences and set-as.~~~--
C.
The "Anti-Exclusion" Approach
A third approach emphasizes the moral cost of maintaining programs that exclude persons
on the basis of race or gender -- even in the name of diversity. This approach entails·
opposition to the. rule-of-two SDB set-aside and to race- or gender-specific scholarships; these
are effectively indistinguishable fr_om quotas. Instead, such. programs would have to be
revamped to rely on multifactor considerations in which race is but one factor, or on race- and
gender-neutral approaches.
· This approach leads one to support elimination of set-asides in all areas. In particular (as
illustrated in Attachment 3):
Education:
Employment:
Procurement:
Option 3 -- Eliminate race- or gender-specific scholarships.
Option 2 -- Oppose consideration of race or gender in layoff deCisions.
Option 2 -- Expand eligibility to include nonminority firms.
9
WJC LIBRARY PHOTOCOPY
�illustrated· in· Attachment 2):. ·
Education:
Employment:
· Procurement:
C..
Option 1 or 2 -- Maintain or tighten current policy.
Indeterminate -- Either option on consideration of race/gen.uel~l.da'Vt
Option 2 --Reform and sharply narrow preferences~
The "Anti-Exclusion" Approach
A third approach emphasizes. the moral cost of maintaining programs that exclude persons on
the basis of race or gender-:- even in the name of diversity. This approach entails opposition .
to the rule-of-two SDB ·set-aside and to race- or gender-specific scholarships; these are
effectively indistinguishable from quotas. Instead, such programs would have to _be revamped
to rely on multifactor considerations in which race is but one factor, or on race- and genderneutral approaches.
·
This approach leads one to support elimination of set-asides in all areas. In particular (as
illustrated in Attacmnent 3):
Education:
Employment:
Procurement:
Option 3 -~ Eliminate race- or gender-specific scholarships.
Option 2 -- Oppose consideration of race or gender in layoff decisions.
Option 2 or 3 -- Reform and sharply narrow procurement preferences, or
phase them out.
10
WJC LIBRARY PHOTOCOPY
�. EXHmiT 1
Provisional Decisions: Check one box (D ) in each column .
(#) --
Calibrated,
-Opportunity 11
Approach
D
11
Anti-Exclusion 11
Approach
D
(1) Maintain current policy
requiring· !!xhaustion.
o (1) Maintain current policy
requiring exhaustion; or
o (2) "Tweak" current policy,
requiring added analysis.
D
(3) Elimiriate race:.. and
gender-based aid by
expanding eligibility,
D
D
(2) Reform & sharply narrow
preferences; emphasize transition;
add disadvantage eligibility; or
D
11
"Least Intrusive
Alternative 11
Approach
Procurement·
Employment
Education
indicates option number
in the memorandum
(3) Convert to race-neutral
programs.
D
(2) Reform & sharply narrow
preferences; emphasize transition;
add disadvantage eligibility.
(1) Permit limited
consideration of race/gender in
layoffs.
(1) Permit limited
consideration of race/gender in
layoffs; or
D
(2) Oppose consideration of
race/gender in layoffs.
D
(2) Oppose consideration of
race/gender. in layoffs.
D. (2) Reform & sh,arpfy narrow
preferences; emphasize transition;
add disadvantage eligibility; or
softening exclusion.
D
::e
c....
(3) Convert to rac~-neutral
programs.
(")
rti::J
A. "Calibrated Opportunity" Approach: Emphasize creating opportunity, not guaranteeing results.
:::0
)>
:::0
B. "Least Intrusive Alternative" Approach: Emphasize narrow tailoring, and concern for bystanders.
::I:
0
C. ''Anti-Exclusion" Approach: Emphasis on avoiding bald set-asides that announce: "No whites need apply."
-<
..,
-i
0
(")
..,
0
-<
.....--;::::.•
. _.S)
Additional Decision: FCC Broadcast Licenses: o (1) .Maintain status quo, or
D
0·
·'1l
?J
m
(/)
0
~'<X
~~
~en ,~,).: .
--.:..--'
(2) Establish a limited tax-certificate program.
·u
�THE WHITE HOUSE
WASHINGTON
April 7; 1995
MEMORANDUM FOR THE PRESIDENT & TIIE VI..CE PRESIDENT/
.
/y
.·.
0 / ·.
.
/_?/
From:
George Stephanopoulos, Christopher Edley, Jr. & Peter
Re:
Yu
Affirmative Action: Themes and Hard Questions
This memorandum summarizes our evolving thoughts regarding policy and communication
choices arising out of the Review. Part I outlines the central issue and Senator Dole's response;
Part II offers an alternative response, building on our earlier conversations and on the Review.
Attachment A presents seven "hard cases" that may facilitate your deliberations. We plan to
discuss this memorandum and the cases with you on Monday. On Tuesday, we will discuss the
more specific policy options; some of which are presented in rough draft in Attachment B.
L
The Central Issue: Questions about "Preferences"
The central and most difficult questions--substantively and politically--concern groupbased preferences: what are those preferences and when are they appropriate?
In public statements, Senator Dole has expressed support for affirmative action as a
remedy for "proven past discrimination against individuals" and for expanded outreach and
recruitment of "qualified minorities and women to give them an opportunity to compete without
guaranteeing the. results of the competition." However,. he has expressed his opposition to
"quotas, set-asides, and other preferences thatfavor individuals simply because they happen to
,
'
belong to certain groups. "
The most likely construction of Dole's opposition to preferences implies opposition to
several existing policies identified in the Review, for example:
·
•
Contracting programs, including: the 8(a) program; sheltered competition among small
. disadvantaged businesses (SOBs); and the 10-percent bid preference for SDBs. (Some
of these could be saved, perhaps, if Dole's phrase "simply because" is satisfied by the
current requirement that SOB's demonstrate "economic disadvantage"; this, however,
requires a somewhat tortured construction.}
•
Race-specific and gender-specific scholarships and fellowships motivated by inclusion
rather than remediation. Examples include an academic scholarship ·program for
minorities that Secretary Shalala established at the University of Wisconsin and an NSF
program designed to support women in basic research.
.
.
WJC LIBRARY PHOTOCOPY
�•
Clinton-style judicial and Cabinet appointments, assuming consideration of
or ethnicity amounts to a "preference."
IL
An Alternative Approach
There is an alternative approach to the question of preferences, one more consistent with the
President's rejection of the "colorblindness" and "pure remediation" visions and his embrace of
a broader justification which includes remediation, opportunity, and inclusion. This approach
would emphasize five points.·
1•
' We oppose quotas and numerical straitjackets (outside of narrow remedial contexts).
2•
We oppose the use of set-asides in employment and contractfng (outside of narrow
remedial contexts).
3•
We oppose giving group-based preferences to unqualified persons m the name of
affirmative action.
4•
We oppose group-based preferences when need-based preferences would be just as
·
effective at creating genuine opportunity.
5•
We oppose group-based preferences when the benefits .or burdens of those preferences
are unduly concentrated.
This Part summarizes the approach, proposing definitions and central .propositions, and then
discussing the most significant implications of such a position.
A .. Definitions
•
A q!!Qta is a rigid numeric or proportional measure that must be attained or that
cannot be exceeded, without regard to the number of potential applicants who meet
necessary qualifications. Example: Befo~e the Bakke decision, the UC-Davis Medical
School maintained _a two-track admissions policy reserving a minimum of 16 of 100
spaces for minority students.
•
A set-aside is a reservation of a set of opportunities or benefits for a particular
group of potential candidates that effectively excludes members of other groups.
Example: Under the "rule of two," procurement contracts meeting certain requirements
may be reserved for small disadvantaged businesses (SDBs). This set-aside is not a
quota because it does not involve "a numeric or proportional measure that must be
attained or cannot be exceeded"; in other words, set'-asides respect minimum
qualifications, but quotas need not.
·
•
A preference is an
ad~antage
assigned to a candidate solely on the basis of his/her
2
WJC LIBRARY PHOTOCOPY
�gender, race, or ethnicity. A preference does IlQi include consideration of such
characteristics, when consideration is essential to the effective operation of the
institution or. enterprise. Example: DOD provides a 10% bid preference to SDBs in
certain situations. Because status as an SDB is not "essential to the effective operation"
of DOD contracting, this advantage is a preference~ In the case of the police force of a
raCialiy-diverse. city, race may be a bona fide consideration and thus positive
consideration of race would not constitute a preference. Similarly, race, gender, or
ethnicity ~ay be a bona fide consideration in university admissions if diversity is essential
to· the effective functioning of the .institution.
In sum, the concepts as illustrated in Exhibit ·1:
All quotas are set-asides, but not all. set-asides are quotas.·
All set-asides are preferences, but not all preferences are set-asides.
All preferences are considerations, but not all considerations are preferences.
Icq (
B. Central Propositions
•
Proposition 1: Discrimination -in every sector of our society and economy must be
eliminated root and branch.
Corollary: Affirmative action practices may be more aggressive and, if necessary,
intfl:lsive in settings in which there is a demonstration of present discrimination or the
lingering effects ofpast discrimination.
•
Proposition 2: Our paramount aspiration is complete equality of opportunity. We
· do not guarantee equality of results ..
• Corollary: We must distinguish among affirmative action in different contexts.
Education is more closely related to opportunity-creation than is federal contracting; thus,
minority scholarships differ from procurement se!-asides.
Corollary: We must distinguish among affirmative action 1Q.Qls.. Some tools enhance
opportunity and level the playing field, others come closer to ensuring certain results;
thus, a targeted surety bond program differs from a procurement set-aside, and multifactor admissions differ from admissions quotas.
•
Proposition 3: Affirmative action remains necessary, but must be transitional.
Inequality of opportunity persists, as illustrated by the persistence of both discrimination
and severe social and economic inequalities.
Corollary: Affirmative action should be transitional for individual participants: these
programs should be entryways, not entitlements. Each program should have graduation
requirements and related supports.
3
WJC LIBRARY PHOTOCOPY
�. WJC LIBRARY PHOTOCOPY
�Corollary: Affirmative action should be transitional for society: when
accomplishes its objectives, it should end.
Proposition 4: We must recognize--and limit--any harm that
programs cause. We must do the right thing, but in the right way.
a
Corollary: Affirmative action programs inust respect individual merit. Quotas--'-in
virtually all contexts--are unacceptable because they subordinate individual merit to rigid
numerical objectives. ·
Corollary: Affirmative action programs must not unduly concentrate burdens. The
burdens that affirmative action imposes on vested interests (such as seniority rights) or
on particular regions or sectors of the economy must be limited.
C. Policy Implications
Fully developed, these propositions· have significant policy implications, particular as
concerns set-asides and preferences.
·
Implication. 1: In general, we are opposed to set-asides .in employment 1 and
government procurement because they are exclusionary; alternative tools. should be
used. We oppose excluding any person from an employment or contracting opportunity
on the basis of race, gender, or ethnicity. There are two options for when this general
rule should not obtain:
•
Alternative 1 (a): Oppose set-asides except in court-ordered or -supervised remedies.
Under this alternative, we would oppose the "rule of two" procurement set-aside and the
8(a) program as currently constituted.
Alternative l(b): Oppose set-asides except as a remedy for specific findings of
·discrimination (by court, Congress, or agency). Under this alternative, we would examine.
procurement practices to determine whether set-asides are necessary.
Implication 2:
Preferences and set-asides in education and preferences in
employment are appropriate to maximize equal opportunity and inclusiveness but
only if they
·
-
•
(a) are never awarded to unqualified persons;
(b)are transitional--establish objectives and terminate when those objectives are met;
1
We know of no formal "set-asides" in the employment context, but there is some
anecdotal evidence that majority candidates sometimes feel that certain positions are set-aside
by "bean counters" for minority candidates only (e.g., university faculties).
4
WJC LIBRARY PHOTOCOPY
�(c) are flexible--are neither actually or effectively quotas; and
(d) are narrowly tailored--are the least race-conscious means of maximizing equal
opportunity and inclusiveness.
Example: Race, gender, and ethnicity are often bona fide considerations in education and
employment. For example, scholarships set aside for women, if appropriately designed,
·
are justified by the values of inclusion and equal opportunity.
•
Implication 3: Contracting is on the "results" end of the continuum because receipt
of a contract seems in significant measure a commercial success rather than a mere
entrepreneurial opportunity. Preferences in procurement, therefore,. may be
appropriate only if the above conditions are met and only when necessary to remedy
demonstrated present discrimination or the lingering effects ofdemonstrated past .
·
discrimination.
Example: Procurement preferences, such as the §1207 bid preference, must be
_appropriately designed and justified by the demonstration of past discrimination or
· -lingering effects. Race- and gender-neutral advantages--such as competitive advantages
based on "opportunity creation" as measured by employment and entrepreneurship for
disadvantaged groups--need not be justified in this way.
In sum, as illustrated in Exhibit2, we are opposed to certain practices (the shaded area).
In addition, we believe other practic~s must be both tailored and justified by past discrimination
or lingering effects (the cross-hatched area).
llL
Conclusion
The Attachment presents seven "hard cases" and outlines both a "Dole" perspective and
an "alternative" perspective on each case. The cases are: ·
1•
SOB set-asides: ·the "rule-of-two" for reserving contracts exclusively for SOB bidders
2•
The Adarand case: bonus payments for subcontracting with SOBs
3•
The Piscataway case: race as a consideration in layoffs
4•
Chicago Police Department promotions (Rep: Lipinski's example)
5•
Banneker Scholarships: black-only merit scholarships at the University of Maryland
6•
Admissions to
. 7•
~he
University of California at Berkeley
Remedial education: a black-only community college course
s·
WJC LIBRARY PHOTOCOPY
�Selected Affirmative Action Efforts
0 p port unity ---------------------------:---------------------------------------------------------------------.:____ Res u Its
Opportunity
Enhancing
Assistance
Advantages &
Flexible Preferences
Set-asides
Education
Compensatory ed
Outreach & recruiting
HBCUs
Multifactor adinissions
policies
Minority-specific
scholarships
(limited competition
among qualified
candidates)
Employment
OutreacJ-t & recruiting
Apprenticeships
Training
Second look programs
Multifactor hiring
(e.g., judiciat·selection)
.f'
c
=
,...
0
0.
0.
0
Quotas
~
c...
(")
-
Contracting
r
OJ
I
:::0
&
Procurement
Technical assistance
.Mentoring
Bonding assistance
---
)>I
:::0
-<!l
-c.,
.· =
~
.--
:I:~
oo::
-1
0
(")
0
""0
-<
Yu DrafUApril 6, 1995 AM
Exhibit 2
�Attachment A: Seven Hard Cases
Case 1. Government Contracting: Sheltered Competition.
·Scenario:
. As part of a larger effort to reach its Department-wide goal of obtaining 5% of all
procurements from small disadvantaged businesses (SOBs), the Department of Defense has
promulgated regulations that direct that a "contracting officer shall set aside an acquisition for
small disadvantaged businesses when there is a reasonable expectation that -- ·
(1) offers will be received from at least two responsible [] SDBs ...
(2) the award will be made at not more than ten percent above fair market price ... ".
Each year .about $800 million in procurements (20% of all SDB procurement by DOD) are
awarded under this so-called i'rule of two."
· · Such set-asides are viewed by some majority-pwned contractors as exclusive, race-based
quotas. Moreover, in some regions and industrial sectors, ·large proportions of the acquisitions
are set aside under this rule. For example, during one period, Barksdale AFB set aside all of its
construction contracts for SOBs under the rule of two.
The "Dole" Perspective:·
"This is a preference because it limits the competition that minority-owned firms must
face. While I support efforts to reach out to minority contractors, Ido not support preferences."
The "Alternative" Perspective:
"While I· believe preferences are sometimes· appropriate in the contracting arena, setasides are only appropriate in [narrow] remedial contexts. Here's why: a set-aside effectively
says: 'No white-owned firms need bid.' That-is unnecessary. I support assisting disadvantaged
firms through preferences, but I don't believe we should ever bar a firm from bidding on a
·
contract simply because of the race or gender of its owner.·
"I have two other concerns about these set-asides. First, they have been implemented in
a way that has had a disparate impact on certain industries and regions. That's urifair. Second,
the program has no graduation requirement and so is not transitional.,--it encourages dependency
rather than diversification and growth ..
"There's a better way that includes: (1) outreach and technical assistance to SDBs to
enhance opportunity; (2) narrowly tailored preferences to SDBs to redress discrimination; and (3)
a broader race-neutral program focusing on the creation of opportunity through race-neutral
preferences for companies that create opportunities for disadvantaged workers an:d communities."
1
WJC LIBRARY PHOTOCOPY.
�Case 2. Government Contracting & Subcontracting: Incentives~
Scenario:
Based on its finding of discrimination, Congress has established certain goals with r
to minority .contracting and subcontracting. · To make progress toward those goals, the
Department of Transportation has provided its prime contractors with incentives to use minority
subcontractors (typically, these incentives total t:S-2.0% of the contract price). This incentive
is referred to as a "subcontractor compensation clau~e" (SCC) .
.In 1989, an agency within DOT awarded a $1 million prime highway-construction
contract to Mountain Gravel (in most cases, DOT awards are administered through state or local
entities; this project happened to be on federal land). Adarand bid for a subcontract -to construct
a guardrail. Although Adarand's bid was the lowest, Mountain Gravel selecteda "disadvantaged
business entity" (DBE) with a slightly higher bid. Under the SCC, Mountain Gravel qualified .
f~r a bonus of approximately $10,000.
The "Dole" Perspective:
"The SCC is a preference based the race of the owner of the subcontractor. I'm generally
opposed to such preferences.· Let me just say that race seems truly irrelevant to the business of
road-building. If there is discrimination in contracting, it should be prosecuted and eradicated.
But contracting takes place in a market in which the bases of competition are clear: quality and
price. Why should a minority-owned firm get a special break?"
The "Alternative" Perspective:
"This is not a set-aside; Adarand was free to bid on the oontract. 1 These efforts are
appropriate only if they are transitional, flexible, narrowly tailored, and necessary to remedy
demonstrated pres;ent discrimination or ,the lingering effects of past di!!!crimination.
"While I believe the SCC is flexible, I would revise it to ensure it was transitional-:-to
make clear that the. program ends when SCCs are no longer needed. I support these programs
as an effort to remedy past or lingering discrimination, to level the playing field. These bonuses
encourage the rethinking of old prejudices and the opening tip old-boy networks."
1
Analytically, this program is a preference but not a set-aside.
2
WJC LIBRARY PHOTOCOPY
�Case 3. Public Employment: Layoffs.
Scenario:
Although Piscataway's Board of Education had never been to found to have discriminated
on the basis of race or ethnicity, the Board has long maintained an aggressive-- and effeCtive
~~ affirmative action poiicy. Piscataway schools have hired the most qualified candidates, but,
in cases in which candidates were otherwise comparably qualified, have favorably considered
minority status. As a result, by 1985, 9.6% of Piscataway's teachers were minorities, compared
to 7.4% of all New Jersey teachers and 12.1% of the statewide labor pool. More than 40% of
the school district's students were minorities.
In 1989, budget cuts required Piscataway to dismiss one business education teacher at
Piscataway High School. The two most junior teachers had been hired on the same day and (it
is. stipulated) were of equal qualifications. Rather than follow another tie-breaking procedure
(such as drawing lots), the Board looked to the racial composition of the business education
department and found that one of the most junior teachers (Williams) was the only AfricanAmerican in the department. Based on this fact, the Board decided to layoff the white teacher
(Taxman) and sent her a letter explaining the use of affirmative action as a tie-breaker.
The Third Ci_rcuit is currently considering whether Title VII permits the Board to act as
it did; the Justice Department has argued that it does. The further issue is whether we would,
as a policy matter, agree with the Board.
The "Dole" Perspective: ·
"This is a preference, plain and simple. Except in the remedial context (which this isn't),
Idon'tthink race should be a preference in hiring, and, as the Supreme Court has recognized,
layoffs are even more problematic: the costs of any affirmative consideration of race or ethnicity
· in layoffs fall direct! y and solely on the losing employee."
.
I
Two "Alternative" Perspectives:
A:
·"Race seems to be a legitimate consideration, particularly in light of the demographics.
Thus I don't think of the Board as assigning a 'preference.' Race favored Williams in. this case,
but in another setting, such as in an effort to desegregate a black school in a dual system, .
Taxman might well have benefitted from the same consideration."
B:
"A tie-breaker that favors one party feels like a preference. Group-based preferences can
be appropriate in the employment context if they are transitional, flexible, and narrowly tailored.
My concern with this case is that it seems to unduly concentrate the burden on Ms. Taxman.
That's why layoffs are different from hiring decisions." ·
3
WJC LIBRARY PHOTOCOPY
�Case 4. Public Employment: Promotions.
Scenario:
Chicago's population is diverse: 39%' African-American, 38% white, 20% His~,-:nHJ-
Its police force is less diverse: 66% white, 34% minority (even in the Department's higher
ranks). These facts have been the subject and source of litigation arid co~:~rt-ordered remedial
hiring and promotion. In addition, the Department has undertaken extensive efforts to redesign
its written tests to reduce disparate impact.
Earlier this year, after administering a promotion test, the Department announced 67
promotions from sergeant to lieutenant. Most of the promotions (54) were awarded to those with
the highest scores on the promotion exam. Only 3 of these- 54 new lieutenants are AfricanAmericans. Probably in response this imbalance, the Department also announced 13 "merit" or
- performance-based promotions to persons, none of whom scored in the top 67 on the exam. Of
the 13, 5 are white, 5 are African-American, and 3 are Hispanic. It is widely assumed that race
and ethnicity were considered in the inerit promotions. A white sergeant with the 56th-highest
score on the exam has sued the Department.
-
The "Dole" Perspective:
"The Department ignored qualifications in the name of race. The Department promoted
some sergeants simply because they belong to certain racial and ethnic groups. This looks like
a quota to me: the 5-5-3 ratio of 'merit' promotions precisely tracks the City's population._
"Clearly, minorities did poorly on the_ promotion exam. The racial composition of the
group receiving 'merit' promotions indicates to me that certain candidates received a preference-th-ey_ had lower test score than white candidates but were nonetheless promoted."
The "Alternative " Perspective:
"This is a classic situation in which race is a bona fide consideration; the racial
composition of a police force can be essential to its effective performance. Even if one were to
regard this as a preference, it is an appropriate preference. First, there is no indication that the
13 candidates were unqualified; the fact that they had slightly lower scores is insignificant.
Moreover,- the fact that five of the merit promotion's were awarded to white sergeants indicates
that this was a flexible preference and not a quota or set-aside. "The Department's real error was in ever assuming that a written test _could somehow
capture the full richness of what it means to be a good police officer. The initial list should have
been based on the test scores and other relevant considerations,
II
4
WJC LIBRARY PHOTOCOPY
�Case 5. Public Education: Scholarships.
Sce1iario:
~-.
The University of Maryland refused to admit African-American students for most of its .
existence. In the late 1960s, the federal government found the University in violation of Title
VI and directed the school to develop a remedial plan. fu 1978, the University established the
Banneker Scholarship Program, which offers full scholarships to African-American candidates
who meet certain academic. qualifications. ·The Program represents about 1 percent of the
University•s financial aid budget and provides assistance to about 30 entering students each year.
Podberesky met the academic criteria for the Banneker Scholarships, but is Hispanic and
not African-American. He has sued, challenging the legality of the exclusivity of the Banneker
program.
The "Dole" Perspective:
"This. is a set-aside--and no different from UC-Davis• two-track system that the
. Supreme Court struck down in Bakke. fu todafs financial climate, a full scholarship can be the
difference between going to college and not going to college. Moreover, if the justification is
to remedy past disadvantage, the raee requirement of the scholarship is underinclusive: why
should the son of a wealthy Jamaican doctor get a scholarship and the needy daughter of a West
Virginia coal miner not?"
The "Alternative " Perspective:
· "This case illustrates how procurement set-aSides differ from targeted scholarships. After
more than a century of exclusion and intimidation, the University of Maryland is finally open to
African-Americans. The University must put out an effective welcome• sign--after all, the
fathers and mothers of many potential applicants were themselves likely turned away simply on
the basis of their race.
"Even outside the remedial context, I believe that targeted scholarships-~ like fellowships
for women in basiC research--serve important and legitimate purposes. I support them so long
as they are flexible, tailored, and there is no comparably effective and group-neutral alternative.
In that regard, I would note that the Banneker program is not a quota. There is no requirement
that a fixed number of African-Americans irrespective of qualifications . be admitted each year."
.
5
WJC LIBRARY PHOTOCOPY
�Case 6. Public Education
Admissions.
Scenario:.
Admission to the University of California atBerkeley is extremely co~petitive; more than
20,000 students apply for 3,500 spaces. To ensure "diversity of cultural, racial, geogra:phic, and
socioeconomic backgrounds," Berkeley uses the following method: about 55 percent of the
spaces are assigned strictly on quantitative academic measures (grades.and SAT scores); about
5 percent are . reserved for "special . admissions" (athletes, older students, and the
socioeconomiCally disadvantaged); the remaining 40 percent are admitted based on a number of
factors, including race and ethnicity. The results. fm ·a recent year: .
% white
% Hispanic ·
% Asian
% black
Entering class
40 . ·
20
28
11
Cal. H.S. grads
63
20.
9
8
------~------~----~------------~~----------~1
By statute, an applicant must have a "B+" average toapply to the UC-systei.ll. Because Afriean-.
Americans have lower high school grade-point averages, one commentator estimated that an
African-American graduate with the requisite average had a 70% chance to get into Berkeley;
while a white student with the same average would have less than a 10% chance.
The "Dole" Perspective: ·
"Berkeley is clearly granting a preference to African-Americans. Competing on the
merits of grades and SAT scores, whites would likely capture half or inore of the spaces .. It's
irrelevant that race is 'one of several factors' -- it is still the decisive factor in many cases.
"Let me also say that this system also disserves African-Americans: in the name of
fairness they are placed in schools where cOmpetition is fierce and for which many of them -due to discrimination and other causes -...,..·are ill-equipped. As a result, while 71% of white
~erkeley students. graduate in five years, only 37% of African-American students do."
The ''Alternative" Perspective:
"Creating opportunity and .ensuring diversity are appropriate goals--if not obligations-of otir universities. ·Accordingly, race can be a bona fide consideration in admissions. This
system does not award preferences to unqualified candidates. The admitted African-American
students are clearly as qualified (even in numerical terms) as the rejected white students: because
the system is so selective,. the students of all races must meet strict threshold requirements, such
as a B+ average."
6
WJC LIBRARY PHOTOCOPY
�Case 7. Public Education: Remedial Education.
Scenario:
Twenty years ago, San Bernardino Valley College created two special programs. The
Bridge Program is designed to serve African-Americans students who are having academic
problems but wish to attend a four-year college. The Puente Program is designed to serve
Hispanics facing similar difficulties. Both provide specialized classes and curricula targeted at
· minority students and offer personal, academic, and career advice. The. programs have been
successful: 66% of the Puente students go on to attend four-year colleges (compared to 7% of
all Hispanic students}. ·
·
Earlier this year, a 25-year old widowed mother of three was denied access to an English
101 class that was part of the Bridge Program--the only class that fit her schedule. The precise
reason for this rejection is disputed: she claims she was not adn1itted to the class because she
was n9t African-American, the school suggests othenyise.
The "Dole " Perspective:
"This is simply a case of 'separate but equal.' Schools are, of course, free to design
courses however they wish-- but they cannot exclude a student from a course simply on
account of her race. · One possible justification for such classes is a desire to build strong ethnic
·communities -- but must such classes be segregated? African-Americans may have distinct
needs, but those could be served through specially trained counselors to provide services outside
of the classroom. Moreover, the programs are based on crude stereotypes: why should a
privileged African-American be allowed in these classes, but not a disadvantaged white?"
The "Alternative" Perspective:
"I oppose this program as an unnecessary race-based set-aside.
"I'm generally· opposed to 'set-asidei programs in employment and procurement -- I
believe that no one sho~ld ever be barred from applying for a job or bidding on a contract on
.the basis of race, gender, or ethnicity. In education, these sorts of set-asides are a little different,
but still must be narrowly tailored. The Bridge and Puente programs arc designed to meet the
special needs of disadvantaged minority students by using familiar curricular material and new
eaucational techniques. I support that objective entirely. It is not, however, necessary to exclude
non-minority students in order to achieve these important objectives."
7
WJC LIBRARY PHOTOCOPY
�Attachment B
DRAFT PROCUREMENT OPTIONS
OPTION (A) --Remedial Preferences and Empowerment Set-Asides
• ' Eliminate race/sex-based quotas and set-asides, including "rule-of-two" set-aside
• Remedial Preferences: Use § 1207-style bid price preferences only in modified Croson situations
only, i.e., where there is a legislatively or administratively determined factual predicate of
discrimination or lingering effects of past discrimination, and race- and sex-neutral means will be
inadequate.
·
• Empowerment Contracting: Set-asides for "Most Favored Businesses" who are periodically
recertified based on objective performance ·in a combination of (i) hiring targeted disadvantaged
workers and (ii) activity in distressed communities. 1 Reform 8(a) to be focus sheltered competition
and sole-source contracting for Most Favored Businesses. (Transition for currerit 8(a) firms.)
OPTION (B) _.:Reform Current Programs to Address Perceived Unfairness and Abuses
· •
Transitional:
• Graduation: Graduation requirements for all contracting programs. Link graduation to size,.
experience. Link "graduation" issue to the individuals, as well as to the firm; avoid churning
· in corporate form.
• Sunsets and Rheostats: With introduction of electronic commerce,. growth of the surety
program, and sophistication of the technical assistance, create "rheostats" to moderate the terms
of procurement preferences· as conditions change. For example, electronic commerce may
justify converting the preferences for small SDB contracts into technical assistance and a very
short duration in sheltered competition. ·
•
Curb abuses:.
.
• Anti-Fraud: Increased enforcement resources against shams and fronts; increased penalties.
• Need: Economic disadvantage: tighten the test to exclude millionaires.
•
Deconcentrate Burdens and Benefits:
.
• Disaggregate Goals: Refine goals to incorporate concern for sectoral- and regional integration - opening up opportunities outside of the customary fields, and outside of the customary
regions.
.
• No Concentrated Burdens: Limit regional set-aside "crowding," as at Barksdale AFR No
contracting entity my apply preferences to more than a set percent of contracts.
• ·Enhancing the effort:
. .
• Pool Outreach/Technical Assistance: Better linkage of technical assistance efforts with
procurement opportunities. Better technical assistance for prime contractors looking for
subcontractors (in part to avoid pressure to rely on fronts and shams); expand the OFCCP/GSA
pilot program.
• Reorgcmiz,ation: SBA's 8(a) program and Commerce's :MBDA program at Commerce.
• Subcontracting Plans: Strengthen requirements/incentives for large primes to develop plans for
outreach to SDB subcontractors.
·
1
This recasts the Labor Surplus Area program to make it far more effective and aggressive, focused on structural distress
rather than countercyclical. assistance.
.
draft 4/7:
p.l
WJC LIBRARY PHOTOCOPY
�DRAFT EMPLOYMENT OPTIONS
•
Strengthen Enforcement:
•.
More enforcement resources for OFCCP -- both for compliance and for reverse
discrimination.
•
More enforcement resources, and added dispute resolution flexibility, for the EEOC to
eliminate its backlog over three years.
•·
Update the statistical labor market data base used by OFCCP to determine the
reasonableness of employment goals.
•
Reduce burdens:
• Raise the OFCCP threshold to $100,000 as part of paperwork reduction and procurement
.reform. [DOL strongly opposes.]
.
.
• Eliminate nflowdown" of OFCCP requirements to subcontractors on commercial procurements.
[DOL strongly opposes.]
·
·
·
• Eliminate the 30-day delay for pre-contracting surveys (since adverse survey result does not, by
court order, result in delay or modification of the procurement action anyway).
• Scale the reporting and _audit "burden" to .the size of the enterprise or the magnitude of the
contract, or both. [DOL-questions.]
.
• Relaxed paperwork and audit burden for good performers. Reduce paperwork burden
.otherwise -- form simplification, etc.
•
Clarify rights and responsibilities:
• Revise E.O. 11246 or the regulations to require that plans expressly prohibit hiring unqualified
individuals in order to achieve a plan's goals.
• Revise regulations so that, for the largest employers, plans should provide for EO training of
personnel officers to prevent abuses of reverse discrimination and numerical straight jackets.
• Balanced notice. Ensure that employees receive notice about the legal limitations on
affmnative action plans, and of their right to redress for discrimination and reverse
·discrimination.
•
Research· on Diversity and Merit Selection:
.
• Interagency development of alternative job-related selection devices as alternatives to, or in
addition to, paper-and-pencil tests. The goal would be to develop a variety of mechanisms that
would provide broader criterion on which to· base merit selection, without disparate impact.
draft 4/7:
p.2
WJC LIBRARY PHOTOCOPY
�THE WHITE HOUSE
WASHINGTON
April 7, 1995
·MEMORANDUM-FOR THE ~ESIDENT &~VICEPRESIJ?EN~
Christophe~ey, Jr. & Peter~
From:
George Stephan¥ulos,
Re:
Affirmative Action: Themes and Hard Questions
This memorandum summarizes our· evolving thoughts regarding policy and communication
choices arising out of the Review. Part I outlines the central issue and Senator Dole's response;
Part II offers an alternative response, building on our earlier conversations and on the Review .
. Attachmen.t A presents seven "hard cases" that may facilitate your deliberations. We plan to
discuss this memorandum and the cases with you on Monday. On Tuesday, we will discuss the
more specific policy options, some of which are presented in rough draft in Attachment B ..
L·
The Central Issue: Questions about "Preferences"·
The central and most difficult questions--substantively and politically...:...-concern group.:...
based preferences: what are those preferences and when are they appropriate? In public statements, Senator Dole has expressed support for affirmative action as a
remedy for "proven past discrimination against individuals" and for expanded .outreach and
recruitment of "qualified minorities and women to give them an opportunity to compete without
guaranteeing the results of the competition." However, he has expressed his opposition to
"quotas, set-asides, and other preferences that favor individuals simply because they happen to
belong to certain groups."
.
·The most likely construction of Dole's opposition to preferences implies opposition to
several existing policies identified in the Review, for example:
•
Contracting programs, including: the 8(a) program; sheltered competition among -small
disadvantaged businesses (SDBs); and the 10..,-percent bid preference for SDBs. {Some
of these could be saved, perhaps, if Dole's phrase "simply because" is satisfied by the
current requirement that SOB's demonstrate "economic disadvantage"; this, however,
requires a somewhat tortured construction.)
·
·
•
Race-specific and gender-specific scholarships and fellowships motivated by inclusion
rather than remediation. Examples include an academic scholarship program for
minorities that Secretary Shalala established at the University of Wisconsin and an NSF
program designed to support women in basic research. ·
WJC LIBRARY PHOTOCOPY
�•
Clinton-style judicial and Cabinet appointments, assuming consideration of rae , gender,
or ethnicity amounts to a "preference.
II
IL
An Alternative Approach
. There is an alternative approach to the question of preferences, one more consistent with the
President's rejection of the "colorblindness" and "pure remediation" visions and his embrace of
a broader justification which includes remediation, opportunity, and inclusion.· This approach
would emphasize five points.
1•
We oppose quotas and numerical straitjackets (outside of narrow remedial contexts).
2•
We oppose the use of set-asides in employment and contracting (outside of narrow
remedial contexts).
3•
We oppose giving group.:...based preferences to unqualified persons m the name of
affirmative action.
4•
We oppose group-based preferences when need-based preferences would be just as
effective at creating genuine opportunity.
·
5•
We oppose group-based preferences when the benefits or burdens of those preferences
are unduly concentrated.
This Part summarizes the approach, proposing definitions and central propositions, and then
discussing the most significant implications of such a position.
A. Definitions
•
A quota is a rigid numeric or proportional measure that must be attained or that
cannot be exceeded, without regard to the. number of potential applicants who meet.
necessary qualifications. Example: Before the Bakke decision, the UC-Davis Medical
School maintained .a two-track admissions policy reserving a minimum of 16 of 100
spaces for minority students.
•
A set-aside is a reservation of a set of opportunities or benefits for a particular
group of potential candidates that effectively excludes members of other groups.
Example: Under the "rule of two," procurement contracts meeting certain requirements
may be reserved for small disadvantaged businesses (SDBs). This set-aside .is not a
quota because it does not involve "a numeric or proportional measure that must be
attained or cannot be exceeded"; in other words, set-asides respect m1mmum
qualifications, but quotas need not.
•
A preference is an adyantage assigned to a candidate solely on the basis of his/her
2
WJC LIBRARY PHOTOCOPY
�gender, race, or ethiiicity. A preference does nQ1 include consideration of such
characteristics, when consideration is essential to the effective operation of the
ins,titution or. enterprise. Example: DOD provides a 10% bid preference to SDBs in
certain situations. Beeause status as an SOB is not"essential to the effective operation"
of DOD contracting, this advantage is a preference. In the case of the police force of a
racially-diverse city, race may be a bona fide consideration and thus positive
· consideration of race would not constitute· a preference. Similarly, race, gender, or
ethnicity may be a bona fide consideration in university admissions if diversity is essential
to the effective functioning of the institution. ·
In ·sum, the concepts as illustrated in. Exhibit ·1:
All quotas are set-asides, but not all set-asides are quotas.
All set-asides are preferences, but not all preferences are set-:-asides.
All prete'rences are considerations, but not .all considerations are preferences.
B. Central Propositions
•
Proposition 1: Discrimination in every sector of our society and economy must be
eliminated root and branch.
Corollary: Affirmative action practices may be more aggressive and, if necessary,
intrusive in settings in which there is a demonstration of present discrimination or the
·lingering effects of past discrimination.
•
Proposition 2: Our paramount aspiration is complete equality of opportunity. We
do not guarantee equality of results.
Corollary: We must distinguish among affirmativ.e action in different contexts.
Edu.cation is niore closely related to opportunity""'"creation than is federal contracting; thus,
minority scholarships differ from procurement set-asides.
Corollary: We must distinguish among affirmative action .tool.s.. Some tools enhance
opportunity and level the playing field, others come closet to ensuring certain results;
thus, a targeted surety bond program' differs from a procurement set-aside, and multifactor admissions differ from admissjons quotas.
·
•
Proposition 3: Affirmative action remains necessary,· but must be transitional.
Inequality of opportunity persists, as illustrated by the persistence of both discrimination
and severe social and economic inequalities.
,
Corollary: Affirmative action should be transitional for individual participants: these
programs should be entryways, not entitlements. Each program should have graduation
requirements and related supports.
3
WJC LIBRARY PHOTOCOPY
�WJC LIBRARY PHOTOCOPY
�Corollary: Affirmative action should be transitional for society: when each program.
accomplishes its objectives, it should end.
•
Proposition 4: We must recognize--and limit--any· harm that these essential
programs cause. We must do the right thing, but in the right way.
Corollary: Affirmative action programs must respect individual merit. Quotas--in
virtually all contexts--are unacceptable because they subordinate individual merit to rigid
· numerical objectives.
·
· .
·· ·
·
. Corollary: Affirmative action programs must not unduly concentrate burdens.
burdens that affirmative action imposes on vested interests (such as seniority ·
on particular regions or sectors of the economy must be limited.
C. Policy Implications
Fully developed, these propositions have significant policy implication~, partie· ar as.
concerns set-asides and preferences.
1
•
Implication 1: In general, we are opposed to set-asides in employment and
government procurement because they are exclusionary; alternative tools should be
us'ed. We oppose excluding any person from an employment or contracting opportunity
on the basis of race, gender, or ethnicity. There are two options for when this general
rule should not obtain:
'
Alternative l(a): Oppose set-asides except in court-ordered or -supervised remedies.
Under this alternative, we would oppose the "rule of two" procurement set-aside and the
· 8(a) program as currently constituted. ·
Alternative l(b): Oppose set-asides except as a remedy for specific findings of
discrimination (by court, Congress, ~r agency). Under this alternative, we would examine
procurement practices to determine whether set-asides are necessary .
Implication 2:
Preferences and set.,.asides . in education and preferences in
employment are appropriate to maximize equal opportunity and inclusiveness but
· only if they
.•
(a) are never awarded to unqualified persons;
(b) are transitional--establish objectives and terminate when those objectives are met;
1
We know of no formal "set-asides" in the employment context, but there is some
anecdotal evidence that majority candidates sometimes feel that certain positions are set-aside
by "bean counters" for minority candidates only (e.g., university faculties).·
4
WJC LIBRARY PHOTOCOPY
�(c) are flexible--are neither actually or effectively quotas; and
(d) are narrowly tailored--are the least race-conscious means of maxi
opportunity and inclusiveness.
Example:· Race, gender, and ethnicity are often bona fide considerations in educa ••·.~~_..
employment. For example, scholarships set aside for women, if·appropriately designed,
are justified by the values of inclusion and equal opportunity.
Implication 3: Contracting is on the "results" end of the continuum because receipt
of a contract seems in significant measure a commercial success rather than a mere
entrepreneurial opportunity. Preferences in procurement, therefore,· may be
appropriate only if the above conditions are met and only when necessary to remedy
demonstrated present discrimination or the lingering effects of demonstrated past
discrimination.
•
Example: Procurement preferences, such as the §1207 bid preference, must be
appropriately designed and justified by the demonstration of past discrimination or
lingering effects. Race- and gender-neutral advantages--such as competitive advantages
based on "opportunity creation" as measured by employment and entrepreneurship for
disadvantaged groups--need not be justified in this way.
In sum, as illustrated in Exhibit 2, we are opposed to certain practices (the shaded area).
In addition, we believe other practices must be both tailored and justified by past discrimination .
or lingering effects (the cross-hatched area).
·
IlL
Conclusion
The Attachment presents· seven "hard cases" and outlines both a "Dole" perspective and.
an "alternative" perspective on each case. The cases are:
'
'
I
•
1•
SDB set-asides: the "rule~of-two" for reserving contracts exclusively for SDB bidders
2•
The Adarand ease: bonus payments for subcontracting with SDBs
3•
The Piscataway case: race as a consideration in layoffs
4•
Chicago Police Department promotions (Rep: Lipinski's example)
5•
Banneker Scholarships: black-,only merit scholarships at the University of Maryland
6•
Admissions to the University of California at Berkeley
7•
Remedial education: a black-only community college course
WJC LIBRARY PHOTOCOPY
�Selected Affirmative Action Efforts
0 p port unity
--------------------------'-----------------------------------------------~---------------------------
Opportunity
Enhancing
Assistance
.c
c
·-:
....
=
lo.
0
Education
Q.
Compensatory ed
Outreach & recruiting
HBCUs
0.
Advantages &
Flexible Preferences
Multifactor admissions
policies
0
Employment
Outreach & recruiting
Apprenticeships
Training
Second look programs
Multifactor hiring
(e.g., judicial·selection)
:::e
c....
(")
Contracting
r
&
to
:::0
Procurement
)>
:::0
Teclmical assistance
Mento ring
Bonding assistance
-
-<Vl
.....
"tJ=
:::cVl
0~
--~~
0
C')
0
"tJ
-<
Yu DrafUApril 6, 1995 AM
Exhiblt 2
Res u Its
Quotas
�Attachment A: Seven Hard Cases
Case 1. Government Contracting: Sheltered Competition.
Scenario:
·. As part of a larger effort to reach its Department-wide goal of obtaining 5% of all
procurements from small disadvantaged· businesses (SDBs), the Department of Defense has
promulgated regulafions that direct that a "contracting officer shall set aside an acquisition for
small disadvantaged businesses when there is a reasonable expectation that -(1) offers will be received from at least two responsible [] SDBs ...
(2) the award will be made at not more than ten percent above fair market price ... ".
Each year about $800 million in procurements (20% of all SDB procurement by DOD) are
· awarded under this so-called "rule of two." ·
Such set-asides are viewed by some majority-owned contractors as exclusive, race-based
quotas. Moreover, in some regions and industrial sectors, large proportions of the acquisitions
are set aside under this rule. For example, during one period, Barksdale AFB set aside all of its
construction contracts for SDBs under the rule of two.
The "Dole" Pe1-spective:
"This is a preference because it limits the competition that minority-owned firms must
face. While I support efforts to reach out to minority contractors, I do pot support preferences."
·The "Alternative ,. Perspective:
"While I· believe preferences are sometimes appropriate in the contracting arena, setasides are only appropriate in [narrow] remedial contexts. Here's why: a set-aside effectively
says: 'No white-owned firms need bid.' Thaf'is unnecessary. I support a<;sisting disadvantaged
firms through preferences, .but I don't believe we should ever bar a firm from bidding on a
contract simply because of the race or gender of its owner.
.
.
"I have two other concerns about these set-asides. First, they have been implemented in
a way that has had a disparate impact on certain industries and regions. That's unfair. Second,
· the program has no graduation requirement and so is not transitional~-it encourages dependency
rather than diversification and growth.
"There's a better way that includes: (1} outreach and technical assistance to SDBs to
enhance opportunity; (2) narrowly tailored preferences to SDBs to redress discrimination; apd (3)
· a broader race-neutral program focusing on the creation of opportunity through race~neutral
preferences for companies that create opportunities for disadvantaged workers and communities."
1
WJC LIBRARY PHOTOCOPY
�Case 2. Government Contracting & Subcontracting: Incentives.
Scenario:
Based on its finding of discrimination, Congress has established certain goals with regard
to minority .contracting and subcontracting. To make progress toward those goals, the
Department of Transportation has provided its prime contractors with incentives to use minority ·
·subcontractors (typically, these incentives·totall.S-2.0% of the contract price). This incentive
is referred to as a "subcontractor compensation clause" (SCC).
In· 1989, an· agency within DOT awarded a $1 million prime highway-construction
contract to Mountain Gravel (in most cases, DOT awards are administered through state or local
entities; this project happened to be on federal land). Adarand bid for a subcontract to construct
a guardrail. Although Adararid's bid was the lowest, Mountain Gravel selected a "disadvantaged
business entity" (DBE) with a slightly higher bid .. Under the SCC, Mountain Gravel qualified
f~r a bonus of approximately $10,000.
The "Dole" Perspective:
"The SCC is a preference based the race of the owner of the subcontractor. I'm generally
opposed to such preferences.· Let me just say that race. seems truly irrelevant to the business of
road-"building. If there is discrimination in contracting, it should be prosecuted and eradicated.
But contracting takes place in ·a market in which the bases of competition are clear: quality and
price. Why should a minority-owned firm get a special break?"
The "Alternative" Perspective:
free·
1
. "This is not a set-aside; Adarand was
to bid on the contract. These e.fforts are
appropriate only if they are transitional, flexible, narrowly tailored, and necessary to remedy
demonstrated present discrimination or the lingering· effects of past discrimination.
"While I believe the SCC is flexible, I would revise it to ensure it'was transitional--to
make clear that the. program ends when SCCs are no longer needed. I support these programs
as an effort to remedy past or lingering discrimination, to level the playing field. These bonuses
·encourage the rethinking of old prejudices and the opening up old-boy networks."
1
Analytically, this program is a preference but not a set-aside.
2
WJC LIBRARY PHOTOCOPY
�C~se
3. Public Employment: Layoffs.
Scenario:
. .
.
.
Although Piscataway's Board of Education had never been to.found to have discriminated
on the basis of race or ethnicity, the Board has long maintained an aggressive -- and effective
-- affirmative action policy. Piscataway schools have hired the most qualified candidates, but,
in cases in which candidates were otherwise comparably qualified, have favorably considered
.minority status. As a result, by 1985, 9.6% of Piscataway's teachers were minorities, compared
to 7.4% of all New Jersey teachers and 12.1% of the statewide labor pool. More than 40% of
the school district's students were minorities.
In 1989, b~dget cuts required Piscataway to dismiss one business education teacher at
Piscataway High School. The two most junior teachers had been hired on the same day and (it
is stipulated) were of equal qualifications. Rather than follow another tie-breaking procedure
(such as drawing lots), the Board looked to the racial composition of th~ business education
department and found that one of the most junior teachers (Williams) was the only AfricanAmerican in the department Based on this fact, the Board decided to layoff the white teacher
(Taxman) and sent her a letter explaining the use of affirmative action as a tie-breaker.
The Third Circuit is currently considering whether Title VII permits the Board to act as
it did; the Justice Department has argued that it does. The further issue is whether we would,
as a policy matter, agree with the Board.
· The "Dole" Perspective:
.
"This is a preference, plain and simple. Except in the remedial context (which this isn't),
I don't think race should be a preference in hiring, and, as the Supreme Court has recognized,
layoffs are even more problematic: the costs of any affirmative consideration of race or ethnicity
-in layoffs fall directly and solely on the losing employee."
Two "Alternative " Perspectives:
A:
"Race seems to be a legitimate consideration, particularly in light of the demographics.
Thus I don't think of the Board as assigning a 'preference.' Race favored Williams in this case,
but in another setting, such as in an effort· to desegregate a black school in a dual system, .
Taxman might well have benefitted from the same consideration."
·
B:
"A tie-breaker that favors one party feels like a preference. Group-based preferences can
be appropriate in the employment context if they are transitional, flexible, and narrowly tailored.
My concern with this case is that it seems to unduly concentrate the burden on Ms. Taxman..
That's why layoffs are different from hiring decisions." ·
3
WJC LIBRARY PHOTOCOPY
�Case 4. Public Employment: Promotions.
Scenario:
Chicago's population is diverse: 39% African-American, 38% white, 20% · Hispanic.
Its police force is less diverse: 66% white, 34% minority (even in the Department's higher .
ranks). These facts have been the subject and source of litigation and col:lrt-ordered remedial
hiring and promotion. In addition, the Department has undertaken extensive efforts to redesign
its Written tests to reduce disparate impact.
Earlier this year, after administering a promotion test, the Department announced 67
· promotions froni sergeant to lieutenant. Most of the promotions (54) were awarded to those with
the highest scores on the promotion exam. Only 3 of these 54 new lieutenants are AfricanAmericans. Probably in response this imbalance, the Department also announced 13 "medt" or
performance-based promotions to persons, none of whom scored in the top 67. on the exam. Of
the 13, 5 are white, 5 are African-American, and 3 are Hispanic. It is widely assumed that race
and ethnicity were considered in the merit promotions. A white sergeant with the 56th-highest
•score on the exam has sued the Department.
The "Dole" Perspective:
"The Department ignored qualifications in the name of race. The Department promoted
some sergeants simply because they belong to certain racial and ethnic groups. This looks like
a quota to me: the 5-.5-3 ratio of 'merit' promotions precisely tracks the City's population ..
"Clearly, minorities did poorly oil the promotion exam. The racial cOmposition of the
group receiving 'merit' promotions indicates to nie that certain candidates received a preference-th~y had lower test score than white candidate.s but were nonetheless promoted." ,
The "Alternative" Perspective:
"This is a classic situation in which race is a bona fide consideration; the racial .
composition of a police force can be essential to its effective performance. Even if one were to
regard this as a preference, it is an appropriate preference. First, there is no indication that the
13 candidates were unqualified; the fact that they had slightly. lower scores is insigniticant.
Moreover, the fact that five of the merit promotions were awarded to white sergeants indicat_es
that this was a flexible preference and not a q\lota or set-aside.
"The Department's real error was in ever assuming that a written test could somehow
capture the full richness of what it means to be a good police officer. The initial list should have
been based on the test scores and other relevant Considerations."
4
WJC LIBRARY PHOTOCOPY
�· Case 5. Public Education: Scholarships.
Scenario:
The University of Maryland refused to admit African-American students for most o 1 s
existence. In the late 1960s, the federal government found the University in violation of Title.
VI and directed the school to develop a remedial plan. In 1978, the University established the
Banneker Scholarship Program, which offers full scholarships to African-Americancandidates
who meet certain academic qualifications. · The Program represents about 1 percent of the
University's financial aid budget and provides assistance to about 30 entering students each year.
Podberesky met the academic criteria for the Banneker Scholarships, but is Hispanic and
. not African-American. , He has sued, challenging the legality of the exclusivity of the Banneker
program.
The "Dole" Perspective:
"This. is a set-aside--and no different from UC-Davis' two-track system that the
.
.
Supreme Court struck down in Bakke. In today's financial climate, a full scholarship can be the
difference between going to college and not going to college. Moreover, if the justification is
remedy past disadvantage, the race requirement of the scholarship is underinclusive: why
should the son of a wealthy Jamaican doctor get a scholarship and the needy daughter of a West
Virginia coal miner not?''
to
The "Alternative'' Perspective:
"This case illustrates how procurement set-asides differ from targeted scholarships. Aft~r
· more than a century of exclusion and intimidation, the University of Maryland is finally open to
·. African-Americans. The University must put out an effective 'welcome' sign--after all,' the
fathers and mothers of many potential applicants were themselves likely turned away simply on
the basis of their race.
"Even outside the remedial context, I believe that targeted scholarships--like·fellowships
for women in basic research--serve important and legitimate purposes .. ·r support them so long
as they are flexible, tailored, and there is no comparably effective and group-neutral alternative.
In that regard, I would note that the Banneker program is not a quota. There is no requirement
that a fixed number of African-Americans irrespective of qualifications be admitted each year."
5
WJC LIBRARY PHOTOCOPY
�Case 6. Public Education: Admissions.
Scenario:
Admission to the University of California at Berkeley is extr~mely competitive; niore than
20,000 students apply for 3,500 spaces. To ensure "diversity of cultural, racial, geographic, and
socioeconomic backgrounds," Berkeley uses ·the following method: · about 55 percent of the
spaces are assigned strictly on quantitative academic measures (grades and SAT scores); about
. 5 percent are reserved for "special admissions" (athletes, older students, ·and the
socioeconomically disadvantaged); the remaining 40 percent are admitted based on a number of
factors, including race and ethnicity. The results for a recent year:
% white
% Hispanic·
% Asian-
% black
Entering class
40
20
28
11
Cal. H.S. grads
63
20.
9·
8
By statute, an applicant must have a "B+" average to apply to the UC-systt~xn. Because AfricanAmericans have lower high school grade-point averages, one commentator estimated that an
African·:.·American graduate with the requisite average had a 70% chance to get into Berkeley;
while a white student with the same average would have less than a 10% chance.
The "Dole" Perspective: .
"Berkeley is clearly granting a preference to African-Amerk..ans. Competing on the
merits of grades and SAT scores, whites would likely capture half or more of the spaces. It's
irrelevant that race is 'one of several factors' -- it is still the decisive factor in many cases.
"Let me also say that this system also disserves African-Americans: in the name of
fairness they are placed in schools where competition is fierce and for· which many of them-due to discrimination and other causes --·are ill-equipped. As a result, while 71% of white
Berkeley students graduate in five years, only 37% of African-American students do."
The "Alternative" Perspective:
"Creating opportunity and ensuring diversity are appropriate goals--if not obligations-of our universities. Accordingly, race can be a bona fide consideration in admissions. This
system does not award preferences to unqualified candidates. The admitted African-American
students are clearly as qualified (even in numerical terms) as the rejected white students: because
the system is so selective,.the students of all races must meet strict threshold requirements, such.
as a B+ average."
6
WJC LIBRARY PHOTOCOPY
�Case 7. Public Education: Remedial Education.
)43
Scenario:
Twenty years ago, San Bernardino Valley College· created two special programs. The
Bridge Program is designed to serve African.;...Americans students who are having academic ·
problems but wish to attend a four-year college. The. Puente Program is designed to serve
Hispanics facing similar difficulties. Both provide speciaJized classes and curricula targeted at
minority students and offer personal, academic, and career advice. The programs have been
successful: 66% of the Puente students go on to attend four-year colleges (compared to 7% of
all Hispanic students).
Earlier this year, a 25-year old widowed mother of three was denied access to an English
lOlclass that was part of the Bridge Program--the only class that fit her schedule. The precise
reason for this rejection is disputed: she claims she was not admitted to the class ~ecause she
was not African-American, the school suggests otherwise.
r-
The "Dole" Perspective:
"This is simply a case of 'separate but equal.' Schools are, of course, free to design
courses however they wish -- but .they cannot exclude a student from a course simply on
account of her race. One possible justification for such classes is a desire to build strong ethnic
communities -- but must such classes be segregated? African-Americans may have distinct
needs,. but those could
served through specially trained counselors to provide services outside
of the classroom. Moreover, the programs are based on crude ster~otypes: why should a
·
privileged African-American be allowed in these classes, but not a disadvantaged white?"
be
The "Alternative" Perspective:
"I oppose this program as an unnecessary race-based set-aside.
''I'm generally opposed to 'set-aside .. programs in employment and procurement -- I
believe that no one should ever be barred from applying for a job or bidding on a contract on
th~ basis of race, gen9er, or ethnicity. ·In education, these sorts of set-asides are a little different,
but still must be narrowly tailored. The Bridge and Puente programs arc designed to meet the
special needs of disadvantaged minority students by using familiar curricular material and new
educational techniques. I support that objective entirely. It is not, however, necessary to exclude
non-minority students in order to achieve these important objectives."
7
WJC LIBRARY PHOTOCOPY
�Attachment B
DRAFT PROCUREMENT OPTIONS
OPTION (A) --Remedial Preferences and Empowerment Set-Asides
•
•
•
Eliminate race/sex-based ·quotas and set-asides, including "rule-of-two" set-aside
Remedial Preferences: Use § 1207-style bid price preferences only in modified Croson situations
only,. i.e., where there is a legislatively or administratively determined factual predicate of
discrimination or lingering effects of past discrimination, and race- and sex-neutral means will be
inadequate.
Empowerment Contracting: Set-asides for "Most Favored Businesses" who are periodically
recertified based on objective performance in a combination of (i) hiring targeted disadvantaged
workers and (ii) activity in distressed communities. 1 Reform. 8(a) to be focus sheltered competition
and sole-source contracting for Most Favored Business~s. (Transition for current 8(a) firms.)
OPTION (B) ..;_Reform Current Programs to Address Perceived Unfairness and Abuses
•
Transitional:
• Graduation: Graduation requirements for all contracting programs. Link graduation to size,
experience. Link "graduation" issue to the individuals, as well as to the firm; avoid churning
in corporate form.
·
.
• Sunsets and Rheostats: With introduction of electronic commerce, growth of the surety
program, and sophistication of the technical assistance, create "rheostats" to moderate the terins
of procurement preferences as conditions change. · For example, electronic commerce may
justify converting the preferences for small SDB contracts into technical assistance and a very
short duration in sheltered competition.
'·
.
.
•
Curb abuses:
• Anti-Fraud: Increased enforcement resources against shams and fronts; increased penalties.
• Need: Economic disadvantage: tighten the test to exclude millionaires.
•
Deconcentrate Burdens and Benefits:
• Disaggregate Goals: Refme goals to incorporate concern for sectoral and regional integration - opening up opportunities outside of the customary fields, and outside of the customary
regions.
.
.
.
• No Concentrated Burdens: Limit regional set-aside "crowding," as at Barksdale AFB. No
contracting entity my apply preferences to more than a set percent of contra9ts..
.,
•
Enhancing the effort:
.
.
. • Pool Outreach/Technical Assistance: Better linkage of technical assistance efforts with
procurement opportunities. Better technical assistance for prime contractors looking for
subcontractors (in part to avoid pressure to rely on fronts and shams); expand the OFCCP/GSA
pilot program.
· ·
• Reorganization: SBA's 8(a) program and Commerce's MBDA program at Commerce.
• Subcontracting flans: Strengthen ·requirements/incentives for large primes to develop plans for
outreach to SDB subcontractors.
1
This recasts the Labor Surplus Area program to make it far more effective· and aggres?ive, focused on structural distress
rather than countercyclical assistance.
'
draft 4/7:
p.l
WJC LIBRARY PHOTOCOPY
�DRAFT EMPLOYMENT OPTIONS
•
Strengthen Enforcement:
•
More enforcement resources for OFCCP --both for compliance and for r>ae"'-,.,_,..,discrimination.
·
.•
More enforcement resources, and added dispute resolution flexibility, for the EEOC to
eliminate its backlog over three years.
.
•
Update the statistical labor market data base used by OFCCP to· determine the
reasonableness of employment goals.
·
•
Reduce burdens:
• Raise the OFCCP threshold to $100,000 as part of paperwork reduction and procurement
· reform. [DOL strongly opposes.]
.
.
• Eliminate "flowdown" .·of OFCCP requirements to subcontractors on commercial procurements.
[DOL· strongly opposes.]
• · Eliminate the 30-day delay for pre-contracting surveys (since adverse survey result does not, by
court order, result in delay or modification of the procurement action anyway).
• Scale the reporting .and audit "burden" to the size of the enterprise or the magnitude of the
.contract, or both. [DOL questions.]
• Relaxed paperwork and audit burden for good performers. Reduce paperwork burden
otherwise -- form simplification, etc.
•
Clarify rights and responsibilities:
• Revise E.O. 11246 or the regulations to require that plans expressly prohibit hiring unqualified
individuals in order to achieve a plan's goals.
·
• Revise regUlations so that, for the largest employers, plans should provide for EO training of
personnel officers to prevent abuses of reverse discrimination and numerical straight jackets.
• Balanced notice. Ensure that employees receive notice about the legal limitations on
affirmative action plans, and of their right to redress for discrimination and reverse
· discrimination.
•
Research on Diversity and Merit Selection:
• Interagency development of alternative job-related selection devices as alternatives to, or in
addition to, paper-and-pencil tests. The goal would be to develop a variety of mechanisms that
would provide broader criterion on which to base merit selection, without disparate impact.
draft 4 I 7 : . p . 2 .
WJC LIBRARY PHOTOCOPY
�'
H
•
•
,
:
••
• •
;
•
! ·•
I :.. .
·j
•. '
. • ..
.
.•' .
.
~
•
t •. ''
.t
1· .
.
' . . ' ~..
'I
t.; '
Withdrawal/Redaction Sheet
Clinton Library
DOCUMENT NO.
AND TYPE
. . .oo l!!tm:emo_
SUBJECTffiTLE
DATE
Alexis Herman to President Clinton, re: Meeting with Jesse Jackson (1
page)
3/8/1995
RESTRICTION
P5
COLLECTION:
Clinton Presidential Records
Public Liaison
Alexis Herman/Ruby Moy
OA/Box Number: 5903
FOLDER TITLE:
Memorandum to President- Meetings with Jesse Jackson
Whitney Ross
2008-0308-F
wr915
RESTRICTION CODES
Presidential Records Act- [44 U.S.C. 2204(a)]
Freedom of Information Act- [5 U.S.C. 552(b)]
Pl
P2
PJ
P4
b(l) National security classified information [(b)(l) of the FOIA]
b(2) Release would disclose internal personnel rules and practices of
an agency [(b)(2) of the FOIA]
b(J) Release would violate a Federal statute [(b)(J) of the FOIA]
b(4) Release would disclose trade secrets or confidential or financial
information [(b)(4) of the FOIA]
b(6) Release would constitute a clearly unwarranted invasion of
personal privacy [(b)(6) of the FOIA]
b(7) Release would disclose information compiled for law enforcement
purposes [(b)(7) of the FOIA]
b(S) Release would disclose information concerning the regulation of
financial institutjons [(b)(S) of the FOIA]
b(9)-Releasewo·ufddis~;_lose geological or geophysical information
concerning wells f(b)(9) of the FOIA]
National Security Classified Information [(a)(l) of the PRA]
Relating to the appointment to Federal office [(a)(2) of the PRA]
Release would violate a Federal statute [(a)(J) of the PRA]
Release would disclose trade secrets or confidential commercial or
financial information [(a)(4) of the PRA]
PS Release would disclose confidential advice between the President
and his advisors, or between such advisors [a)(S) of the PRA]
P6 Release would constitute a clearly unwarranted invasion of
personal privacy [(a)(6) of the PRA]
C. Closed in accordance with restrictions contained in donor's deed
of gift.
PRM. Personal record misfile defined in accordance witb44.;;Y.S.C.~.: .
2201(3).
:
. f i . - _,. . ~.r···
RR. Document will be reviewed upon request.
INTON LIBRARY PHOTOCOPY
COPY
~
�March 8, 1995
MEMORANDUM TO THE PRESIDENT
FROM:
ALEXIS M. HERMAN
.SUBJECT:
SUGGESTED POTUS DROP-BY TO MEETING WITH REV.
JACKSON
Rev. Jesse Jackson and a group of others will be meeting with Leon Panetta, Harold
Ickes, George Stephanopoulos and me on a long-standing request for a White House
meeting to discuss a conference on jobs and Affirmative Action.
We have delayed honoring this request until we were further into our strategy on
Affirmative Action.
Given our overall political strategy, it is important that you do a five - minute drop-by
since this meeting request has been a long-standing request to meet with you
personally. The meeting will be in the Roosevelt Room today between 2:30 and 3:30
p.m .. We would like you to drop-by between 3:00-3:15 if possible.
At the drop-by, you should convey, privately, to Rev. Jackson that you have worked
out a date to meet with him, and that you are interested in having him accompany you
to Haiti (per Tony Lake's suggestion).
COPY
�! .I
:
·~
.
' .' :
''
.·
'
I
I
.
Withdrawal/Redaction Sheet
Clinton Library
DOCUMENT NO.
AND TYPE
DATE
SUBJECTtTITLE
RESTRICTION
3/27/1995
Marcia Hale to the POTUS, re: Affirmative Action (1 page)
COLLECTION:
Clinton Presidential Records
WHORM - Su~ject File General
HU012
OA/Box Number: 23338
FOLDER TITLE:
106814SS
Whitney Ross
2008-0308-F
wr853
RESTRICTION CODES
Presidential Records Act- [44 U.S. C. 2204(a)j
Freedom oflnformation Act- [5 U.S. C. SS2(b)]
Pl National Security Classified Information [(a)(l) of the PRA)
P2 Relating to the appointment to Federal office [(a)(2) of the PRA]
PJ Release would violate a Federal statute [(a)(J) of the PRA]
P4 Release would disclose trade secrets or confidential commercial or
financial information [(a)(4) ofthe PRA)
PS Release would disclose confidential advice between the President
and his advisors, or between such advisors [a)(S) of the PRAJ
P6 Release would constitute a clearly unwarranted invasion of
personal privacy [(a)(6) of the PRA]
b(l) National security classified information [(b)(l) of the FOIA)
b(2) Release would disclose internal personnel rules and practices of
an agency [(b)(2) of the FOIA)
b(3) Release would violate a Federal statute [(b)(3) of the FOIA)
b(4) Release would disclose trade secrets or confidential or financial
information [(b)(4) of the FOIAJ
b(6) Release would constitute a clearly unwarranted invasion of
personal privacy [(b)(6) of the FOIA)
b(7) Release would disclose information compiled for law enforcement
purposes ((b)(7) of the FOIA)
b(S) Release would disclose information concerning the regulation of
financial institutions ((b)(S) of the FOIA)
b(9) Release would disclose geological or geophysical information
~_1,mcerning,~ells [(b)(9) of the FOIA)
C. Closed in accordance with restrictions contained in donor's deed
of gift.
PRM. Personal record misfile defined in accordance with 44 U.S.C.
2201(3).
RR. Document will be reviewed upon ~equest. _.;A[!2 · . _.r-.---:-_;;..,~
;
c£-
"·
•wa
COPY
:
�/OG?!I-j:J~
Ht/t.O!;L
THE WHITE HOUSE
WASHINGTON
THE PRE.siDENT \-\"S SEEN
3\;}~~q5
March 27, 1995
MEMORANDUM TO THE PRESIDENT
HALE\t~~.;IJ~
FROM:
MARCIA L.
ce:-
ERSKINE BOWLES
HAROLD ICKES
ALEXIS HERMAN
RE:
AFFIRMATNE ACTION
\
Harold has told me of your interest in having a meeting while you are in Atlanta
regarding Affirmative Action. I have spoken with both Gordon Giffin and Steve Wrigley
(Zell's Chief of Staff) about the possibilities of doing so Tuesday evening.
It has been suggested that you hold the meeting at the Governor's mansion
immediately following the reception that Zell is hosting for attendees of the economic
conference. The reception is scheduled to end at 8:00pm.
Gordon has suggested that you keep the meeting moderately small so it can be
productive and still leave time for you and Governor Miller to have. dinner at a reasonable
hour. Suggested attendees are: Andy Young, Maynard Jackson, Bill Campbell, John Lewis
(if he's in town}, Jeanette Coles and Herman Russell. Is this okay with you?
You suggested to Harold that Ray McClendon be invited as well. You should know
that McClendon and Mayor Campbell are in the middle of a disagreement which is playing
out in the local press. McClendon is invited to the reception and economic conference, so
you will see him while you are in Atlanta even if he is not part of this meeting - which is the
suggestion of those consulted.
The Governor would like to know if you want to have dinner at the Mansion or go _to
a nearby restaurant. I think he would prefer to take you out - another argument for a smaller
meeting so that you could leave for dinner around 9:00pm. Can I tell Governor Miller that
dinner at a restaurant is fme with you?
Please let me know if you have any questions.
COPY
�Withdrawal/Redaction Sheet
Clinton Library
DOCUMENT NO.
AND TYPE
SUBJECTffiTLE
DATE
RESTRICTION
001. memo
Todd Stem to President Clinton, re: Affirmative Action ( 13 pages)
6/30/1995
P5
002. memo
Duplicate -Todd Stem to President Clinton, re: Affirmative Action
(12 pages)
6/30/1995
P5
423tf
D~
COLLECTION:
Clinton Presidential Records
WHORM - Subject File General
HUOI2
OA/Box Number:. 23338
FOLDER TITLE:
118056SS
2008-0308-F
wr857
RESTRICTION CODES
Presidential Records Act- 144 U.S.C. 2204(a)l
Freedom of Information Act- IS U.S.C. 552(b)l
PI
P2
P3
P4
b(l) National security classified information l(b)(l) of the FOIAI
b(2) Release would disclose internal personnel rules and practices of
an agency l(b)(2) of the FOIAI
b(3) Release would violate a Federal statute l(b)(3) of the FOIAI
b(4) Release would disclose trade secrets or confidential or financial
information l(b)(4) of the FOIAI
b(6) Release would constitute a clearly unwarranted invasion of
·personal privacy l(b)(6) of the FOIAI
b(7) Release would disclose information compiled for law enforcement
purposes l(b)(7) of the FOIAI
b(8) Release would disclose information concerning the regulation of
financial institutions l(b)(8) of the FOIAI
b(9) Release would disclose geological or geophysical information
concerning wells l(b)(9) of the FOIAI
National Security Classified Information l(a)(l) of the PRAI
Relating to the appointment to Federal office l(a)(2) of the PRAI
Release would violate a Federal statute l(a)(3) of the PRAI
Release would disclose trade secrets or confidential commercial or
financial information l(a)(4) of the PRAI
PS Release would disclose confidential advice between the President
and his advisors, or between such advisors la)(S) of the PRAI
P6 Release would constitute a clearly unwarranted invasion of
personal privacy l(a)(6) of the PRAI
C. Closed in accordance with restrictions contained in donor's deed
of gift.
PRM. Personal record misfile defined in accordance with 44 U.S. C.
2201(3).
RR. Document will be reviewed upon request.
�THE WHITE HOUSE
/-~~/_/ c·-)l.J-&~(_.
I '~···
,
t
WASHINGTON
June 30, 1995
_MEMORANDUM FOR THE PRESIDENT
FROM:
TODD STE~
SUBJECT:
Affirmative Action
Attached is a Stephanopoulos/Edley decision memo on affirmative
action. There are four principal decision points.
Speech site. George and Chris recommendCentral High School in
Little Rock for a July 19 speech, but present Constitution Hall
and Atlanta as alternatives. They also mention four already
scheduled conventions, none of which seems promising.
The Adarand Directive. This Directive (a draft is at Tab A)
would formally establish the review process led by the Attorney
General and require her to give you a progress report in 90 days.
The issue is whether to issue a Directive at all and, if so,
whether to do it now or defer it, probably until the time of the
speech.
Procurement Setasides. Four options are presented: (1) baseline
anti-abuse reforms only; (2) eliminating current SDB programs
with an instruction to develop a new program meeting the broader
objectives of antidiscrimination, entrepreneurial opportunity,
and economic development; (3) same as option (2), but not
providing as much detail about what the new program should be;
(4) eliminating race-based setasides, creating a sheltered
competition program based on geography only.
Use of Race or Gender in Layoffs -- Piscataway. The options are
to allow diversity to be considered in a flexible manner and in
limited circumstances -- DOJ's current Piscataway position; or to
declare, as a matter of policy, that race or gender shouldn't be
considered in layoff decisions.
We have circulated this memo to all relevant staff in the White
House. Given the scope of the decisions, you may well want to
have a meeting to work these issues through.
COPY
�THE WHITE HOUSE
WASHINGTON
95 JUN 28
June 27, 1995
MEMORANDU~OR THE PRESIDENT
From: George
Re:
-
~C.,_
C; -vv
opoulos and Christopher Edley, Jr.
Affirmative Action -- Speech, Review and Policy Decisions
This memorandum reviews the four pieces of the Affirmative Action rollout:
•
•
•
a major speech on July 19th-- we seek your decision on venue;
release of the Review;
a presidential Directive to agency heads creating a process coordinated by the Attorney
General to ensure compliance with Adarand -- we seek your decision on whether and
when to issue the Directive; and
• two key policy choices for immediate decision and, if you chose, announcement with the
speech: setasides and the Piscataway issue of using race/gender as a factor in layoffs.
I. The Speech: Content and Venue
Content. Don Baer and Carolyn Curiel, with assistance from others, are conducting the broad
outreach you requested. As we discussed, the speech will be a broadly thematic discussion of
discrimination, exclusion, equal opportunity, and healing. It will include a strong defense of
affrrmative action when done the right way, and offer policy principles which will be made
concrete with a few pointed programmatic examples of the good, the uncertain and the
problematic.
Among the possible program examples are:
The good:
Programs you confidently support include: the military; your judicial
appointments; your Cabinet appointments; the OFCCP program of affrrmative action in
employment.
The uncertain: Programs you support but for which you want the Attorney General's
confirmation of compliance with Adarand include: the several grant programs operated by
the Departments of Education and HHS; NSF grant programs. The most common rationale
for these grant programs is dramatic underrepresentation of historically excluded groups, plus
1
A;::.·
·- _,r--=-_\;.. -
-
..
~INTON L~RARY PHOTOCOPY
'
COPY
�some context-specific public interest m inclusion (for example, broade
resource base for research scientists).
The problematic: Programs you believe need revisions include: Contracting se
s·
USDA setaside-like auctions of foreclosed farms. Although post-Adarand empirical studies
_ might establish that these are constitutionally defensible, as a policy matter they in some
instances are unfair.
·
For purposes of the speech and any supporting press materials, we can supplement these with
state, local and private sector examples drawn from litigation and press accounts. We do not
recommend a detailed rollout of how Federal programs sort into these three categories because
most if not all of those judgments should now be deferred until the post-Adarand assignment is
complete, as indicated in the discussion below of the Directive.
Venue. Listed below are venue options for your speech. As with any major address, your
speech is what matters here. The venue's history and symbolism will provide secondary color. .
In this case specifically, the anticipation and coverage of the speech will be significant, and the
location will create context and generate helpful side-bar stories.
•
Little Rock Central High School, Little Rock, Arkansas
Recommended option. This site would allow your speech and the issues surrounding affirmative
action to be framed within the larger context of the civil rights movement and the struggle for
equal justice and opportunity. The media would use the school's history when covering the
speech. When combined with your own experiences and battles against racism, this would make
a powerful statement framing your remarks. Networks would perhaps contrast footage of you
with scenes of Gov. Faubus. You might choose to mention contemporary problems at Central
High to underscore the critical importance of the larger opportunity agenda, specifically quality
education.
•
Constitution Hall, Washington, D. C.
Alternative option. This site allows you to draw on the building's history in the fight against
discrimination (Marian Anderson) as well as the footsteps-away history of events around the
Mall and commemorated there. The Hall seats over 3,500 people-- a crowd we would build- which would inevitably create a serious, Presidential, high-energy environment. The crowd
could be built thematically, for example: a multiracial a3semblage of church congregations;
young people.
•
Atlanta, Georgia--Site TBD
By going to "The City Too Busy To Hate," a city essentially built on affirmative action, you
could both draw on the history of Dr. King and early civil rights efforts while using the city as
an example of the issue in contemporary times. We would locate a venue of historical
2
·.,
(t:~T~NL:RARYPHOTOCOPY
'
COPY
�significance to Dr. King, such as a park where he used to preach, etc.
comparisons with King's speeches, including the "content of their character" portion o
Have a Dream" speech. This is both a plus and a minus.
•
Already-Scheduled Events
There is a surprisingly small selection of events scheduled on or around July 19, none of which
seem very promising:
Presbyterian Church USA, General Assembly, July 15-22, Cincinnati.
Over 3,000
delegates. (No surrogate plans as yet.)
ljational Council of La Raza, July 16-19, Dallas. (Current plan: possibly the First Lady
or Leon Panetta.) Would be complicated by immigration concerns.
-
African-American Chamber of Commerce, July 19, Oakland. Over 1,000 delegates.
(Current plan: Rodney Slater.) Aggressive counter-scheduling; not recommended.
Business and Professional Women, Convention, July 15-18, Tulsa. Expecting 1,500
participants. (No surrogate plans as yet.) Would aggressively position the issue as
broader than a minority concern; relative emphasis on race would be criticized.
Decision
_
Little Rock Central High School
_
Constitution Hall, Washington D.C.:
Audience of church congregations
Other
_ _ Atlanta, (site TBD)
of Presbyterians
of La Raza
of black chamber of commerce
of Business and Professional Women
Convention
ll. Adarand Directive to Agency Heads; the Commission
Directive. The detailed empirical analysis and consideration of program revisions now required
as a consequence of Adarand must be coordinated by the Department of Justice as regards the
legal determination of whether a program is constitutionally defensible. The parameters for that
analysis are detailed in formal guidance to agency general counsels issued today by Walter
Dellinger, Office of Legal Counsel; you received a draft on Monday evening. You must decide
3
;A,:::-
r---::-·,;.__·
r~INTON LIBRARY PHOTOCOPY
"·
COPY
�The process must also include some continuing White House participation to superintend
int~ragency policy judgments about reforms that might be desirable to make certain programs
more defensible or more consistent with your own non-constitutional policy views. The legal
and policy choices are all but impossible to disentangle, and will in any case be attributed to the
White House. Because there will be steady stream of such decisions, quiet White House
participation in the interagency effort will be led by Judge Mikva and George Stephanopoulos.
(The directive does not mention the White House role, lest we recreate pressure for White House
documents and visible White House decisionma.YJng.)
-
.
-What is the relationship of the Review to the Directive? We suggest:
"The Review provided the President with basic factual information concerning
various Federal programs and the background conditions of discrimination and
exclusion. Early drafts provided a preliminary application of his policy principles
to various programs. In light of Adarand, however, these preliminary policy
judgments and the evidence underlying them are now subject to strict scrutiny by
the courts, and must be reviewed by the Justice Department to ensure compliance
with Adarand."
There are three options for the Directive:
OPTION
1: IssUE NO DIRECTIVE; REST ON INFORMAL GUIDANCE BY THE CIDEF OF STAFF
Pro: By not issuing a presidential document we avoid making White House news, and leave this
as a DOJ story about legal matters. Although we have a response to a question about the
relationship to the Review, that response is best delivered at the time of the speech.
Con: Leadership; the speech is relatively far off. Meanwhile, the text of the directive
simultaneously assures skeptics that there is high level concern about good faith compliance with
Adarand, and assures the base that your overall framework is true to your principled support for
affirmatively expanding opportunity:
OPTION
2: ISSUE THE DIRECTIVE NOW
Pro: Issuing a Directive demonstrates leadership; reassures Congress that they need not act
precipitously because the Executive branch is fully engaged. Although House GOP leaders are
reportedly putting affirmative action on a slow track, Senator Dole and Rep. Canady are
shopping broad anti-affirmative action measures.
Con: Will lead to some news stories, though probably minor. Will trigger a question about the
4
#.
,-.-·--:··L·· . .
~~INT~N :~RARY PHOTOCOPY
COPY
�status of the Review -- although that question is being asked anyway, and our
ans~r is
above
solid.
~-r•r
OPTION
•.. •'
3: DEFER DECISION; PERHAPS ISSUING DIRECTIVE AT THE TIME OF THE SPEECH
Pro: There is little practical or political urgency, because agencies will begin their Adarand
assignments, and formal presidential endorsement of the DOJ-led process is unlikely to make
a meaningful difference in this summer's legislative process.
Con: DOJ believes that there will, eventually, be some sticking points in the interagency
process, and that those will be minimized if there is a formal directive. Issuing a directive at
the time of the speech creates an unnecessary distraction from a communications perspective.
Moreover, since_ the Attorney General's process will be well underway, the directive will seem
·a fairly empty gesture rather than a timely exercise of leadership.
Decision:
_
Option 1: Issue no Directive; rest on informal guidance by the Chief of Staff
_
Option 2: Issue the Directive now
_
Option 3: Defer decision; perhaps issuing directive at the time of the speech
Commission. Congressional interest in a bipartisan commission has waned. Your advisers and
the agencies all believe that a fact-finding commission on compliance with Adarand would not
be helpful -- either as a practical matter of getting the empirical and legal work done, or as a
matter of winning greater deference from Federal district court judges. Nor does it appear likely
to create credibility that would cause swing Members of Congress to oppose anti-affirmative
action amendments. Finally, civil rights advocates speak in terms of "presidential leadership,"
andoppose making affirmative action policy a "jump ball" in some unpredictable commission,
with potentially dire consequences.
Your advisers therefore see little to gain and much to lose from going forward with a
Commission concerning Adarand and specific Federal programs. Moreover, a commission with
the alternative charter of framing a national conversation on opportunity seems a far less
attractive strategy in the present environment than it might have been before Adarand and the
more focused legislative risks now looming.
ill. The Review
At a minimum, the Review will include a
de~cription of your policy framework,
an analysis of
5
~;;:.
.. .r:--:-·o;.._' .
..
(~INTON L~RARY PHOTOCOPY
'·
COPY
�~
~~E.SIDftv
1/.
o'
/.:..
aY~~L\
;..;<'
the Adarand case, a review of evidence documenting the continuing problem of dis rimination
te. The
and exclusion, and a description of the range of Federal programs and how they o
draft of the Review prepared prior to Adarand also included a balanced presentation of g d and
bad information collected on program performance, our "findings of fact" based on t a
information, and some policy conclusions and recommendations. In light of Adarand, however,
ang the certainty of both litigation and eventual legislative action, the Department of Justice and
several agency general counsels have raised very serious objections to releasing these factual and
policy matters. (Two suits have been ftled already.) Judge Mikva is among those urging that
even if an abbreviated document is released, it should come some days after the speech in order
to maximize attention to the speech and minimize attention to the document. We are discussing
these difficulties, and will have a recommendation for you next week.
-
.
IV. Decision on Procurement Setasides
Baseline -- Reform of Abuses: The Review has identified a number of areas of abuse or
perceived abuse. As in all the other areas we examined, these abuses are far less common in
reality than is generally assumed by critics. Nevertheless, addressing these is necessary as a
matter of fairness and political circumstance; the reforms will also have a marginally helpful
impact on the Attorney General's constitutional analysis. Some details of needed regulatory and
statutory changes remain to be defined after the general parameters, noted below, are announced.
(It would be impossible to develop sound details while maintaining confidentiality.) The five
key elements and summary prescriptions are:
1. Tighten the Economic Disadvantage Test. Reform the asset test to count the value of
the personal residence and to consider the spouse's assets (now excluded) in a manner
analogous to treatment of a 49 percent owner of the enterprise.
2. Tighten Requirements for Graduation. Apply 8(a)'s 9 year graduation limit to all SDB
programs, but then direct the NBC and SBA to establish objective industry-specific criteria
for determining when any individual firm "develops" beyond need for sheltered competition.
Direct the NBC and SBA to establish caps on the dollar value of contracts, plus a cap on
total dollars a single firm can win through sheltered competition. These measures will also
reduce the concentration of 8(a) awards among a few successful firms.
3. Stringent Safeguards Against Fronts and Pass-Tbroughs. Create a uniform,
privatized certification process for all SDBs. Require certification audits at the time of the
first contract and periodically thereafter to verify continuing eligibility and to monitor for
"fronts" and "pass-through" companies. L'lcrease civil and criminal penalties.
4. Sunsets and Caps to Reduce Regional/Industry Concentrations. Direct the NBC to
formulate industry and regional caps/controls to prevent significant adverse burden on nonSDBs. Direct the NBC to determine industries/areas where sheltered competition programs
may be phased out based upon successful inclusion.
6
. ;A,Y:·
. _.rc---=-.k-. -
(~INTON LIBRARY PHOTOCOPY
"·
COPY
�Key agency officials agree that, unless you announce opposition to the current setasid we must
announce this minimum package, making clear that the details will require careful con tation.
The package would be described not only in terms of combatting abuses, but also ensunng
conformity with your policy test of fairness.
Further Steps -- Options for Broadening Eligibility: In light of your policy tests, and because
of the shadow cast by Adarand, we offer these additional options to make minority status less
of a defining and exclusive condition of eligibility for procurement preferences. The critical
choice is whether you want to move to race/gender-neutral targeting, and whether you want to
do so in your speech, in advance of the post-Adarand study process. The options are:
(1) announce only the baseline anti-abuse reforms described above, leaving further reforms
until_ after the DOJ-led review of Adarand compliance:
(2) eliminate current SDB programs as being excessively rigid and exclusionary (although
in DOJ's view defensible). Instruct agencies to develop a new program, consistent with
Adarand, meeting broader objectives of antidiscrimination, entrepreneurial opportunity, and
economic development;
(3) the same as option 2, but with fewer specifics about the objectives and the type of
mechanism to be developed as a replacement program; and
(4) elimination of all race/gender preferences, with empowerment contracting only.
OPTION
1: ANNOUNCE ONLY THE "BASELINE" ANTI-ABUSE MEASURES DESCRIBED ABOVE
Pro: It would be prudent to complete the detailed empirical and program assessments required
by the Supreme Court before rushing to judgment about broad program changes. If we rush,
Congress will feel emboldened to rush. None of the broader policy options below could at this
stage be accurately described as constitutionally compelled; they would be naked, controversial
policy judgments. The Congressional Black Caucus, civil rights groups, MBE representatives
and Assistant Attorney General Deval Patrick all believe you should defer specific policy
judgments of this radical sort until after the Attorney General's process. The abuses identified
are the seeds of much opposition to setasides, and constitute a meaningful reform step.
Con: The media and many others will not consider this option alone meaningful. The story will
be "President Endorses Setasides, Offers Reforms." Especially after so long a Review, the
public expects at least some significant policy judgment from the President -- in both the
affrrmative and negative -- as a measure of leadership as well as commitment to concrete fairness
principles. Deferring all policy choices means completely collapsing the policy judgment into
the constitutional analysis, and that amounts to ceding policy authority to Justice O'Connor.
Because of the empirical work required by Adarand, and because of your strong basic support
for the education programs, procurement setasides are the one opportunity available now for a
7
;_;t;;:..·-
•, _:::--:-_·~·
.
&INTON LIBRARY PHOTOCOPY
...\
COPY
�clear policy choice, up or down.
OPTION 2: RE.TEcr CURRENT PREFERENCES; CHARGE AGENCIES TO DEVELOP AN
BR.o~ El.JJIBn..nY, TARGETIN3 Scx:lAILY OR Ib:>:NJMI:AILY DNADVANTAIGFil'iN~!;»,!ftl
.& DISTRESSED AREAS
You would announce that the current programs, though constitutionally defensible and addressed
to an important problem of unequal entrepreneurial opportunity, operate in a manner that is too
rigid and, at times, racially exclusionary. The current minority-targeted preferences would be
eliminated. You would direct the agencies to develop, through the NEC, a proposal consistent
with Adarand for a new, single program with broader eligibility, focused on three objectives:
(1) expand equal entrepreneurial opportunity by combatting discrimination and its effects where
evidenc~ (as required by Adarand) indicates the need; (2) support emerging enterprises through
-race/gender-neutral targeting of small firms new to federal contracting; and (3) use small
business "empowerment contracting" to target job creation in severely distressed communities.
Pro: This incorporates the three key policy priorities you have expressed to us. Specificity of
the objectives underscores the commitment to a follow on program, so that your critique of
current programs does not signal abandonment of MBEs and WBEs. DOJ believes the resulting
program design would be substantially more defensible than current programs, including that in
Adarand. A more concrete proposal is impossible in advance of the DOJ post-Adarand analysis.
Promising prospective conformity with Adarand will comfort moderates; hard opponents are
unreachable anyway. Adding women to preferences is a major enhancement.
Con: Even at this level of generality, proposing greater eligibility for preferences (women,
deserving white males) creates a risk being tagged as "hiding" minority preferences behind a raft
of new preferences for other groups -- being all things to all people, instead of making a tough
choice. Even the three objectives will be criticized for using race as a factor -- though in a far
less exclusive way. Retaining the flexible MBE and WBE goals seems essential as a
management and accountability tool, but the loose mischaracterization of the scheme will be that
it perpetuates the old programs and simply adds new preferences on top.
OPTION 3: RElECr CURRENT PREFERENCES; CHARGE AGENCIES TO DEVELOP A NEW PROGRAM WITH
BROADER ELIGIBILITY; LEAVE OBJECTIVES AND DESIGN MORE GENERAL
As in option 2, you would criticize the current programs and direct agencies to develop a
replacement. But the replacement would be de:;cribed in a more open-ended way to avoid
focused legal and policy objections at this stage. You would simply commit to: opening up
opportunities to entrepreneurship more broadly, consistent with Adarand, addressing not only
disadvantages created by discrimination, but also the need to increase entrepreneurship and job
creation in economically distressed areas.
Pro: This option stops short of a concrete proposal in order to avoid criticism for adding new
preferences on top of the current ones, and to avoid proposing something that will immediately
8
. A<,:,. -.. .rc;-."- ·
·
·
(~LINTON L~RARY PHOTOCOPY
~
COPY
�~q
0
·~
Vi
~€:,SID€tv,>:
~(
413
(":
l{ ~
trigger (unjustified) criticism that we are flouting Adarand. However, your charge to
NEC
and agencies would incorporate the three key policy preferences you have articulated: coi\ inuing
to address discrimination, explicitly tied to Adarand's requirement of a factual pr
Je;
broadening preferences on some race-neutral basis; and explicit attention to econom'ic~---- development goals. A detailed proposal should await a full Adarand study of contracting issues.
M~while, you will have endorsed a continuing Federal commitment to Federal-level effort in
this arena.
Con: With only a vague commitment about some future replacement, this option will be
perceived by setaside supporters as an abandonment of minority and women entrepreneurship.
More generally, the vagueness of the planned replacement will be criticized as a "dodge," and
the asserted need to do careful policy study (as opposed to legal study) will raise questions about
what th~ Review accomplished during its 100 days. By announcing dissatisfaction with the
-current programs but "punting" on the replacement, we invite immediate Congressional action
to kill them, and greatly complicate the defense of them in court. If the intention is to kill them,
we should go directly to option 4 below.
OPTION
4:
GEOGRAPIDCAL TARGETING ONLY -ELIMINATE RACIAL AND GENDER PREFERENCES
This option would eliminate the current race-based setasides and create a sheltered competition
program with eligibility based on performance of the contract by a small business in a designated
distressed zone and/or hiring above a threshold level of employees from such a zone.
Aggressive management measures will, we hope, prevent severe erosion of progress we have
made in MBE/WBE participation; you should know, however, that this erosion is likely over
the longer run.
Pro: Eliminates controversial and constitutionally sensitive racial targeting, while elevating and
There will be some
focusing on the message of jobs and economic development.
disproportionate benefit to minority entrepreneurs, though far less effective than at present.
Your discussions with William Julius Wilson reflect this emphasis, as do several major
Administration initiatives in the broader realm of economic opportunity and investment. Some
of our consultations with minority business leaders indicate that focusing on geography is more
acceptable than using economic disadvantage alone, because means-testing (i) will sweep in a
vast number of non minorities and (ii) will aid the cause of those who, like Senator Gramm and
Justices Scalia and Thomas, oppose all race-based measures.
Con:
Will be viewed as abandoning any commitment to address directly the problem of
discrimination-based denial of entrepreneurial opportunity, and doing so before any post-Adarand
studies have indicated that such abandonment is constitutionally compelled. With this policy
declaration, current programs would be easy prey in Congress and the courts.
9
;A--:::·-
- _r~_T....,..
(~INTON L~RARY PHOTOCOPY
--.."'
COPY
~
�Decision:
_Option 1:
Anti-abuse reforms only; defer major program changes
_Option 2:
Out with the old programs; announce specific policy objectives of
expanded opportunity; direct agencies to formulate a proposal consistent
with Adarand.
_Option 3:
Same as option 2, but with less specificity on new program objectives.
_Option 4:
Eliminate race- and gender-based preferences; use geography only.
V ~ Decision on Use of Race or Gender in Layoffs: Piscataway
Background. The central issue in this area concerns race or gender as a consideration in
layoffs. Under current law, two propositions are clear. First, layoffs cannot be used as a means
to implement an affirmative action policy by "making room" for new, diverse employees.
Second, race or gender cannot trump a bona fide seniority system.
The reach of this second principle is limited. While seniority systems are common in the public
sector, the decline of unionism has reduced the private sector's reliance on such systems. Thus,
reportedly, many large firms expressly consider diversity in their layoff policies, and with
significant results: lllinois Bell recently cut 930 management jobs, but the proportion of
minority managers rose from 25 to 27%; Baxter cut 20% of its 2000 employees, but the
proportion of minority managers incre.ased from 10 to 12%.
The narrow question of "tie-breakers" is thus most likely to arise in the oontext of a seniority
system where layoff decisions are more structured. In the Piscataway case, the Justice
Department has argued that Title VTI does not prohibit the School Board from using race as a
tie-breal<ing consideration in pursuit of a legitimate interest in diversity. In the context of the
Federal civil service, OPM regulations are silent: the Justice Department's Office of Legal
Counsel believes the Federal statutes and caselaw would, as in Piscataway, peimit narrowly
tailored consideration of race or gender.
More generally, In certain sectors, there is a sense that some job opportunities are limited to
"diversity candidates" and that white males are thereby disadvantaged. Second, there are
concerns that in a continuing era of corporate ree:1gineering, women and minorities are, due to
affirmative action, at less risk of being laid off. On the other hand, as you have noted,
affirmative action is sometimes used cynically to justify decisions made for other reasons,
legitimate and otherwise. Moreover, whatever the constriction of opportunities felt by
nonbeneficiaries, this Occurs against a backdrop of continuing underrepresentation of minorities
and women in those sectors. (Otherwise, the. affirmative action would be illegal.)
10
A;::
..
_r·.,.-_,__
rf..hLINTON
--
·
L~RARY PHOTOCOPY
COPY
�Options. The policy options include:
OPTION 1: As A POUCY MATIER, WHEN NOT INCONSISTENT WITH A BONA FIDE SENIORITY
DIVERSITY MAY BE CONSIDERED IN LAYOFFS, BUT ONLY IN A FI.EXIBLE MANNER
LIMITED CIRCUMSTANCES.
Pro: This option is close to the status quo, but does not lend itself to a simple rule. Instead,
this approach would call for the common-sense balancing of the institution's general diversity
interest and the burden on identifiable majority employees.
Situations are different.
Consideration of race or gender would be permissible only: when necessary for the institution's
operation; when a manifest racial or gender imbalance exists; and when less race-intrusive
considerations are not effective. This option is consistent with the DOJ position in the
Piscataway case_.
Con: Complex. Does not speak clearly to the anxieties of non-beneficiaries. As a plurality of
the Supreme Court said in "Ygant, race-based layoffs may impose a more substantial burden
than race-based hiring and promotion goals, in that "denial of a future employment opportunity
is not as intrusive as loss of an existing job." Layoffs are different.
OPTION 2: As A rollCY MATTER, RACE OR GENDER SHOillD NOT BE CONSIDERED IN lAYOFF DECEIOI"S.
Pro: This option would issue a sharp and clear statement -- layoffs are different -- and would
provide some comfort to whites, males, and their dependents, in a time of insecurity. (There
would be a corresponding reinforcement of minority and women concerns about their
marginality.) In the public employment context, this is likely to have little practical impact
because seniority rules already limit the issue to rare tie-breaker-type situations.
Con: This absolute rule goes too far. It will rekindle the "last hired, first frred" resentment of
minorities and women. It ignores the pressing diversity interests that may be at stake in
particular situations -- especially where diversity is a bona fide consideration for organizational
effectiveness. This option would send a loud signal to the private sector, chilling some diversity
efforts and encouraging affirmative action critics. It would be criticized as a flip-flop from the
Administration's litigation position in Piscataway.
Decision:
_ _ Option 1: As a policy matter, when not inconsistent with a bona fide seniority
system, diversity may be considered in layoffs, but only in limited
circumstances.
_ _ Option 2: As a policy matter, race or gender should not be considered in layoff
decisions.
11
COPY
�VI. Rollout Scenario More Generally
We are developing a coordinated communications and outreach effort. Finalizing\he p_oolilicy
options, speech themes, date and venue will help. The goal is to manage expectations ~pe _.
the characterization of the speech before it is given, as well as to amplify it to the greatest exteni/
po~sible
afterwards.
The full rollout will involve members of the Cabinet and sub-Cabinet, and the Legislative
Affairs, Public Liaison, Communications and Press offices and the White House and key
agencies. In addition to the Administration's activities, outside/independent opinion leaders from
the civil rights community, academia/education, women's community, economic/corporate and
religious worlds will be integrated ir..to the validaticn efforts.
12
,,
;,tl!,:
r~·T
"·
_r~-~n.T'TYY"T T
TDD DV PT-InTnrnPY
A
-.
COPY
�.
.
'
.
.
'-
·;~·.-~
·,- ,.,.:·.·_, l-
,lj
.
'
'
:
'
.
''I I
'
Withdrawal/Redaction Sheet
Clinton Library
DOCUMENT NO.
AND TYPE
SUBJECTrriTLE
DATE
RESTRICTION
001. memo
Lynn Cutler to Harold Ickes et al. [partial] (1 page)
03/08/1995
P6/b(6)
002. memo
Betsy Myers to Barbara Woolley, re: Recommended Names for
President's Affirmative Action Event (2 pages)
3/1311995
P5
Betsy Myers to President Clinton, re: Speech to DNC Chairs (1 page)
7/1211995
P5
"' oo3~rme-m.·~
L\?_~S
COLLECTION:
Clinton Presidential Records
Public Liaison
Barbara Woolley
OA/Box Number: 23688
FOLDER TITLE:
Affirmative Action Documents 2 [2]
Whitney Ross
2008-0308-F
wr483
RESTRICTION CODES
Freedom of Information Act- (5 U.S.C. S52(b)]
Presidential Records Act- [44 U.S. C. 2204(a)]
PI National Security Classified Information [(a)(l) of the PRA]
P2 Relating to the appointment to Federal office [(a)(2) of the PRA]
P3 Release would violate a Federal statute [(a)(3) of the PRA]
P4 Release would disclose trade secrets or confidential commercial or
financial information [(a)(4) of the PRA]
PS Release would disclose confidential advice between the President
and his advisors, or between such advisors [a)(S) of the PRA]
P6 Release would constitute a clearly unwarranted invasion of
personal privacy [(a)(6) of the PRA]
C Closed in accordance with restrictions contained in donor's deed
of gift.
PRM. Personal record misfile defined in accordance withJt.!!.S.,C:.~·-c-_,;:..-- nn
~:~~~~-• ..,m ~a•na~a.I
ha
nnnn
rMn~ot
b(l) National security classified information [(b)(l) of the FOIA]
b(2) Release would disclose internal personnel rules and practices of
an agency [(b)(2) of the FOIA]
b(3) Release would violate a Federal statute [(b)(3) of the FOIA]
b( 4) Release would disclose trade secrets or confidential or financial
information [(b)(4) of the FOIA]
b(6) Release would constitute a clearly unwarranted invasion of
personal privacy [(b)(6) of the FOIA]
b(7) Release would disclose information compiled for law enforcement
purposes [(b)(7) of the FOIA]
b(8) Release would disclose information concerning the regulation of
financial in§!.i_!!I_t~ons.[(b)(8) of the FOIA]
- -- b(9t}feteiise would di'SI4ose geological or geophysical information
!~~ ~T~~" ~~ ~" ~T::::u~n~=:~ls ~~~)(9) of the FOIA]
T
•
COPY
�THE WHITE HOUSE
WASHINGTON
July 12, 1995
INFORMATION
MEMORANDUM TO THE PRESIDENT
FROM:
BETSY MYERS
DEPUTY ASSISTANT TO THE PRESIDENT AND
DIRECTOR FOR WOMEN'S INITIATIVES AND OUTREACH
SUBJECT:
SPEECH TO DNC CHAIRS ON TUESDAY EVENING, JULY 11, 1995,
OPPORTUNITY TO MOVE OUR MESSAGE TO WOMEN
While your speech was enthusiastic and well received, I wanted to pass along to you that seve'"al
women commented that they felt excluded because the speech, like others you have delivered,
failed to address women directly.
I feel that we missed a tremendous opportunity to activate our state leaders about
accomplishments of the Administration for women. This audience, in particular, will be moving
our message.
Although this consistent omission is unintentional, the perception is not. Women are looking to
be included in your speeches and "pi~:ture." Your speeches offer one of the best opportunities
to show women that we not only care about them but we are aware of their concerns and that
their issues and their votes are important to us.
I attach, for your convenience, my memo on "Targeting Women in Your Speeches," dated June
29, 1995.
cc:
Harold Ickes
. -··
-
....
----···-
'".
COPY
�Withdrawal/Redaction Sheet
Clinton Library
DOCUMENT NO.
AND TYPE
SUBJECT!TITLE
DATE
RESTRICTION
L\ 3la(Q
001. memo
AlexisHennan to the POTUS and VPOTUS, re: Affmnative Action ·
Procurement Refonn (6 pages)
4/8/1996
PS
002. telefax
Ginger Lew to Kitty Higgins and Alexis Hennan (2 pages)
03/28/1996
PS, P6/b(6)
4/12/1996
PS
4/19/1996 .
PS
003. memo
004. list
. Richard Hayes to Kris Balderston, re: Affirmative Action (1 page)
Status of Affinnative Action Activities (2 pages)
COLLECTION:
Clinton Presidential Records
Cabinet Affairs
Kitty Higgins
CLINTON LIBRARY PHOTOCOPY
OA/Box Number: 8996
FOLDER TITLE:
Box 1, Folder 1: [Affinnative Action- March 20, 1995 to May 22, 1996] [3]
Whitney Ross
2008-0308-F
wr476
RESTRICTION CODES
Presidential Records Act- 144 U.S.C. 2204(a))
Freedom oflnformation Act- [5 U.S.C. 552(b))
Pl National Security Classified Information \(a)(l) of the PRA)
P2 Relating to the appointment to Federal office [(a)(2) of the PRA)
PJ Release would violate a Federal statute [(a)(J) of the PRA)
P4 Release would disclose trade secrets or confidential commercial or
financial information [(a)(4) of the PRA)
PS Release would disclose confidential advice between the President
and his advisors, or between such advisors [a)(S) of the PRA)
P6 Release would constitute a clearly unwarranted invasion of
personal privacy [(a)(6) of the PRA)
b(l) National security classified information ((b)(l) of the FOIA)
b(2) Release would disclose internal personnel rules and practices of
an agency [(b)(2) of the FOIA)
b(J) Release would violate a Federal statute [(b)(J) of the FOIA)
b(4) Release would disclose trade secrets or confidential or financial
information [(b)(4) of the FOIA)
b(6) Release would constitute a clearly unwarranted invasion of
personal privacy [(b)(6) of the FOIA)
b(7) Release would disclose information compiled for Jaw enforcement
purposes [(b)(7) of the FOJA)
b(8) Release would disclose information concerning the regulation of
financial institutions [(b)(8) of the FOIA)
b(9) Release would disclose geological or geophysical information
concerning wells [(b)(9) of the FOIA)
C. Closed in accordance with restrictions contained in donor's deed
of gift.·
PRM. Personal record misfile defined in accordance with 44 U.S.C.
2201(3).
RR. Document will be reviewed upon request.
�MEMORANDUM FOR THE PRESIDENT AND VICE-PRESIDENT
FROM:
ALEXIS HERMAN
JACK QUINN
DATE:
APRIL 8, 1996 (Draft)
RE:
AFFIRMATIVE ACTION PROCUREMENT REFORM
Close Hold
Summary
This memorandum forwards for your consideration the Justice Department's proposal
for reforming federal affirmative action procurement to ensure compliance with· the
constitutional standards established in Adarand Constructors, Inc. V. Pena (June 12, 1995).
The proposal will be published in. the Federal Register for a 60-day comment period, after
which its structure would form a model for setting up the affirmative action provisions of the
Federal Acquisition Streamlining Act (F ASA) Regulation and the Defense Federal Acquisition
Regulation Supplement. The proposal is intended to take effect October 1, 1996.
Background of this Issue
On July 19, 1995, you directed the Justice Department to review federal affirmative
action programs to ensure their constitutionality under the Supreme Court's Adarand decision,
also their effectiveness, and fairness. The Court ruled, that federal affirmative action programs
must serve a compelling government interest and must be narrowly tailored, if race and
ethnicity were used as a basis for decision making. Adarand involved government contracting,
but the court's decision also extends to federal employment, and health and education programs.
After a thorough review of legislative history and economic and statistical data, the
Department of Justice concluded, that there still exists a compelling need for federal
procurement programs that benefit disadvantaged minority businesses. Their proposal would
change the administration of a wide range of race-conscious means now used in government
contracting to promote minority participation, but not eliminate them. It doesn't cover
affirmative action in procurement undertaken by states and localities pursuant to programs
funded by federal agencies, e.g., Disadvantage Enterprise Program that the Department of
Transportation administers pursuant to the Intermodal Surface Transportation Act of 1991.
These programs are still under review at Justice. In 1995, only 6.5 percent of the federal
government's purchasing was conducted with disadvantaged businesses even with the use· of
affirmative action programs.
'The Department of Justice's proposal incorporates the following elements into a system
CLINTON LIBRARY PHOTOCOPY
�•
• ·-·-~·
-~<::>·~~-pT ,.._
'·
(i9~
l.!i
.
\~
~~vw
.
'i
-1
.
2
.
.
~
0
'<":
~
.
.
.
~oWl~
.
.
~7
they believe is consistent with your commitment to ensuring equal opportunity in
responds to the courts' narrow tailoring requirements, and is faithful to statutory authority:
• Safeguards against fraud and abuse by firms that should not be certified as socially
disadvantaged businesses and prosecution of those that intentionally abuse the system.
• System of market-sensitive benchmarks to govern the use of provisions that allow
race to be considered in making federal procurement awards.
• Several 'race-conscious means - SBA's 8(a) program, and price and evaluation
credits in subcontracting - would be permitted to promote minority procurement. Various
race-neutral outreach and technical assistance activities are permitted as well to enhan~e
contracting opportunities for SDBs.
• Use of price and evaluation credits· would be governed by the level to which
minority firms are actually receiving federal contracts and dollars in an industry. Where
minority participation is below the benchmarks, race-conscious methods of contracting would
be authorized. Where minority participation exceeds the benchmark, the use of race may be
curtailed.
• Set-asides, such as the· "Rule of Two" - that the Defense Department suspended
last October on the advice of the Justice Department - would not be permitted, until "lesser"
means have been tried for three years - e.g., prices and evaluation credits - and found
unsuccessful in ensuring minority contracting opportunities.
• The 8(a) program is unaffected by the proposal, other than counting 8(a) awards to
SDBs toward the benchmarks- where minority awards exceed the benchmark in an industry,
SBA may cut back on 8(a) awards in that industry. There will be no moratorium on 8(a)
awards or structural changes to the program.
Justice's Proposal and Clinton Administration Support for Affirmative Action
These factors are considerations in your decision to accept Justice's proposal for
mending affirmative action in federal procurement and publishing it for public comment:
Pros:
Justice believes their proposal satisfies the constitutional requirements of Adarand.
Justice's proposal "mends, but does not end" affirmative action in federal
procurement.
-- Justice's proposal provides further evidence of your commitment to affirmative
CLINTON LIBRARY PHOTOCOPY .
~ .
'
.
�~~\IAL l..t.
~
q
i.lj
~
3
~~
'-1.
q1'J(.P
~
.
<IV
action programs that are done right. Currently available evidence overwhelmingly s , '~s the
continued need for affirmative action in federal procurement.
-- Justice's proposal is generally regarded by Civil Rights Groups and the minority
business community· as a reasonable approach to Adarand.
However, they disagree with
Justice's recommendation to wait three-years, before deciding if set-asides are still needed to
eliminate any remaining impediments to the development of minority-owned businesses. If not
changed, this time· frame w:ould cause this issue to be raised in the third year of your second
administration.
-- Justice's proposal makes it easier for individuals who do not benefit from a
presumption of being socially and economically disadvantaged to qualify for the program by
lowering the standard of proof SBA will require ..
-- Justice's proposal provides the basis for an alternative to Dole-Canady, which
Democrats and moderate Republicans can point to, as proof that your Administration is serious
about "mending" affirmative action programs. If enacted, Dole-Canady would effectively
overturn decades of Supreme Court decisions regarding .affirmative action.
Cons:
-- Justice's proposal is being presented at a time of unprecedented and wholesale
attacks on affirmative action· programs in the Congress, at the state level, and in the courts.
Besides Dole-Canady, which will soon be taken up by the House' JudiCiary Committee:
• The self-titled California Civil Rights Initiative, if enacted this fall, would ban race
arid gender preferences for minorities and women.· Similar efforts will appear on the ballot in
several states this fall arid is being considered by several state legislatures.
• The Governor of Louisiana signed an executive order suspending affirmative action
programs. Several states and cities are following suit.
• The Hopewood decision, if it stands, would have a sweeping impact on the ability
· of higher education institutions in this country to achieve the widely-recognized goal of
· diversity. The Attorney General of Texas is seeking a review of the Fifth Circuit's decision,
and it is expected that the Justice Department would take all appropriate action to ensure that
.diversity in education remains a part of the fabric of our nation's law.
• There have been several court cases challenging the use of affirmative action in
contracting and the constitutionality ofthe 8(a) program. While Justice lawyers have prevailed
to date, most recently in the tenth circuit, additional challenges are likely to continue.
-- Justice's proposal focuses on the narrow tailoring requirements of Adarand, but says
nothing about what the government should be to provide additional opportunities for minorities
and women, considering the overwhelming evidence justifying the continued need for such
·CLINTON LIBRARY PHOTOCOPY
~
~
�.·
~~\AL
c9v;
~~
1'JA
4
t~h~~d be done.
~ L,\ ~~VI
prOgram. d r e t a r y Ron Brown, among others, expressed his concer
argued
:~ut
___
this and
I!Q
,_
The Defense Department's decision to suspend .the "Rule of Two" last October, has
caused significant' economic hardship on the minority business community. They are working
hard to create additional opportunities for minority owned businesses, consistent with Adarand,
but the minority business community has been quite critical of their response to date.
-- There will be budget consequences. SBA and Coliunerce will need additional
resources to cover their increased responsibilities and to cover the cost of collecting and
· processing the data needed to support the new benchmarking system.
-- Justice's proposal will represent a significant departure for federal procurement
agencies and will take the full commitment of the Cabinet to oversee its carrying out. Because
ofthe uncertainty generated by Justice's review of affirmative action programs, there has been
a significant drop off in government contracting with minority and SDB firms. Part of this
drop off can probably be traced to problems surroUnding the FY '96 budget and government
shutdowns, but not all. We have heard of several instances that agencies no longer feel that
they have to be as diligent about contracting with minority firms.
Other Affirmative Action Activities at Justice
-- The Justice Department issued detailed guidance in February setting forth how
Adarand will affect the use of race in federal employment. Practically speaking, few changes .
are expected in the use of race in federal employment, as similar Title VII standards have
applied for many years.
-- The Justice Department is working with agencies, primarily Department of
Transportation and EPA, which negotiate annual goals for SDBs under grants to states and·
localities. They expect to have ·new guidance in place for FY 97 funds.
Justice is working to develop means to tie the goals federal agencies set with states
and localities to the availability of minority-owned firms, and a factor to account for the effects
of discrimination, in a manner similar to the procurement reform proposal. They are also
discussing with agencies how much they should be involved in policing state and local use of
federal funds, both to insure that Adarand is satisfied and that minority firms receive the full
range of race-conscious competitive advantages permissible under the law.
-- Justice is reviewing several programs agencies operate that are intended to place
more minorities into academic fields. While these programs are defensible, we will need to
develop more information to show the manner in which discrimination has impeded the ability
of minorities to enter some academic fields to provide a defense to the challenges likely to
come.
CLINTON LIBRARY PHOTOCOPY
�0«;,~'\\ALL_~~
'Y .
0
'Y'.p
l.LJ
5
~ ~~?~(p
..(
v·
-
0
-- · Justice is closely monitoring the Hopewood decision to decide wh i6.~p ederal
7
participation in the case is warranted .. The Federal government is still firmly
notion that diversity in education is an important compelling interest.
Recommendations
commi'tte~to..th
On balance, we believe the pros prevail and recommend that you accept Justice's
. proposal. There has been substantial input from outside groups, in the development of the
current proposal, and the 60-day comment period will allow for ·additional concerns to be
raised by the public before the proposal is completed. One change, which we do encourage
before the proposal is published, is for the trial period to be reduced from the proposed three
to two years. This should be long enough to access the workability of Justice's approach and
to decide if set-asides are needed to eradicate discrimination in federal procurement.
Beyond publishing Justice's proposal, we encourage you to undertake several additional
steps to reaffirm your support-for-affirmative action. A misleading, March 8, New York Times
article; has done considerable damage to the ·good will the Administration ·has enjoyed since
your July 19, 1995 "mend it, don't end it" speech and your University of Texas speech on race,
which was given to general acclaim. Because of this article, which implied that your
Administration was imposing a three-year moratorium on affirmative action programs and was
suspending the 8(a) program, we have been flooded with calls and letters protesting this action
and questioning whether the Administration is backing off its support for affirmative action...
Efforts to contain this criticism by issuing talking points, conducting interviews with women's,
Civil Rights Groups, and representatives of the minority business community, and African
American newspapers and radio stations, have helped but additional steps are still needed to
shore up our base:
-- Issue a formal statement over your signature accepting Justice's proposal and
directing that it be published· for public comment. In accepting the proposal, you should use
this opportunity to reaffirm your support for affirmative action done right and creating legal
opportunities for minority and women to pursue in government contracting. You should also
note your continued support for the 8(a) program, which SBA is working hard to improve its
efficiency.
-- Direct the Department of Justice to issue guidance to the federal departments and
agencies as to their continued responsibilities under existing Executive Orders to provide
contracting opportunities for minorities and women. You should also emphasize to the Cabinet
that you expect them to redouble · their efforts to provide contracting opportunities for·
minorities and women in ali aspects of their agencies procurement activities.
-- Use the occasion of your Saturday radio address to reiterate your support for
affirmative action.
-- Host a half-day White House session with leaders from academia, business and the
Civil_ Rights community ·to discuss how best to preserve and strengthen the commitment to
CLINTON LIBRARY PHOTOCOPY
�6
affirmative action and diversity in higher education. The session should be chaired by Dick
Riley and Janet Reno, and should conclude with a working dinner given by you and/or the
Vice President.
--. Use the occasion of your (or the first lady's) speech to the Leadership Conference
on Civil Rights Dinner May 14, to discuss the continued need for a "national conversation" on
racial and gender justice as a follow-up to your speech last June. Our message might be, the
things that affirmative action seeks to address - widespread discrimination and exclusion
· and their ripple effects continue to exist, and we as a nation must find ways to combat racism
and enforce civil rights.
Affirmative action is not about preferences, but opportunities.
Critics' efforts to denounce minority-targeted scholarships, affirmative action procurement, and
diversity in higher education must not be allowed to stop the progress at eliminating the last
vestiges of America's legacy of discrimination.
CLINTON LIBRARY PHOTOCOP'r
�
Dublin Core
The Dublin Core metadata element set is common to all Omeka records, including items, files, and collections. For more information see, http://dublincore.org/documents/dces/.
Title
A name given to the resource
Previously Restricted Documents
Date
A point or period of time associated with an event in the lifecycle of the resource
1993-2001
Description
An account of the resource
<p>This collection contains documents that were previously restricted under the <a href="http://www.archives.gov/presidential-libraries/laws/1978-act.html" target="_blank">Presidential Records Act</a> for restrictions P2 (appointment to federal office) and/or P5 (confidential advice between the President and/or his advisors and between those advisors). For more information concerning these collections please see the collection finding aids index. The finding aids detail the scope, content, and provide a box and folder title list for each collection.</p>
<p>The <a href="http://www.archives.gov/presidential-libraries/laws/1978-act.html" target="_blank">Presidential Records Act (PRA)</a> includes provisions that these types of documents be withheld for twelve years after the end of a president's administration. These documents are now being made available to the public. The documents will be released in batches and will be uploaded here as they become available. The documents will also be available in the Clinton Library’s research room.</p>
<p>Please note the documents in this collection may not contain all the withheld documents listed on the collection's withdrawal sheet index.</p>
Publisher
An entity responsible for making the resource available
William J. Clinton Presidential Library & Museum
Extent
The size or duration of the resource.
397 folders
Text
A resource consisting primarily of words for reading. Examples include books, letters, dissertations, poems, newspapers, articles, archives of mailing lists. Note that facsimiles or images of texts are still of the genre Text.
Dublin Core
The Dublin Core metadata element set is common to all Omeka records, including items, files, and collections. For more information see, http://dublincore.org/documents/dces/.
Title
A name given to the resource
2008-0308-F - Affirmative Action [Part 3]
Identifier
An unambiguous reference to the resource within a given context
2008-0308-F
Is Part Of
A related resource in which the described resource is physically or logically included.
Previously Restricted Document Release no. 7
Format
The file format, physical medium, or dimensions of the resource
Adobe Acrobat Document
Publisher
An entity responsible for making the resource available
William J. Clinton Presidential Library & Museum
Medium
The material or physical carrier of the resource.
Reproduction-Reference